Lately I have been asked the above questions multiple times in my capacity as an insurance broker. It’s an interesting question also relevant in these times and has an emotional charge to it as well because the virus doesn’t discriminate and everybody is a potential victim. The first step looking into the Employees Compensation Ordinance (ECO)(the Ordinance):
Section 5(1) of the Ordinance provides that “if in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee, his employer shall be liable to pay compensation in accordance with this Ordinance”.
In this Section the word “Accident” drew my attention immediately and I wondered when an employee contracts COVID19 during the course of her/his employment would it also considered an accident for the EC insurance policy to cover this claim?
Based on the present state of law, the contraction of COVID-19 can be regarded as an “accident” within the meaning of ECO. The main difficulty lies in proving that said accident occurred in the course of and arose out of the employment. The determination of the above issues is extremely fact sensitive and highly dependent upon the facts and evidence (including expert evidence) of each case. Simon Wong and Flora Lam
Wong & Lam also mentioned the implications for “work from home” arrangement as employees contracted COVID19 need to proof that contracted the virus during work. Question is how can one proof what she/he was actually doing in their home while they were exposed to the virus. We will have to keep following the news on similar cases to find out how the Hong Kong institutions and insurers will treat such cases.
As for the employers in Hong Kong, Employees’ Compensation Insurance is mandatory to have for every of their employees. They will need to keep their policies and employees up to date to avoid under insurance. The Insurance Authority and Hong Kong insurance company already increased the control on insured asking for supporting documents proving current salaries and staff details when issuing ECI policies.
References:
Employees Compensation Ordinance (ECO)
COVID-19 – The Law Un-Masked: The Coronavirus and Employees’ Compensation Claims by Simon Wong & Flora Lam – https://dcc.law/wp-content/uploads/2020/04/click-here..pdf
