Frequently Asked Questions about
The Employment Ordinance, Cap. 57

Sick Leave

Q1. Under what circumstances is an employee entitled to sickness allowance? Answer
Q2. Can paid sickness days be accumulated? Answer
Q3. How is sickness allowance calculated? When should it be paid? Answer
Q4. Can an employer dismiss an employee who is on paid sick leave? Answer

 
Content
 
Q1. Under what circumstances is an employee entitled to sickness allowance?
A1.

An employee employed under a continuous contract is entitled to sickness allowance if:

(1)
the sick leave taken is not less than four consecutive days (unless for any day off taken by a female employee for her pregnancy check-ups, post confinement medical treatment or miscarriage, any such day on which she is absent shall be counted as a sickness day and, subject to the following conditions, be paid sickness allowance);

(2)
the sick leave is supported by an appropriate medical certificate*; and

(3)
the employee has accumulated sufficient number of paid sickness days
(Click here to see A2 for information on accumulation of paid sickness days).


Paid sickness days are divided into two categories - paid sickness days can first be accumulated up to 36 days in Category 1 and then 84 days in Category 2.

For taking paid sickness day(s) under Category 1, a medical certificate* issued by a registered medical practitioner, registered Chinese medicine practitioner or a registered dentist is required. 

When the sickness days taken exceeds the number of paid sickness days remaining in Category 1, any further sickness day(s) taken will enter in Category 2. For taking paid sickness day(s) under Category 2, if so required by the employer, a medical certificate* issued by a registered medical practitioner, registered Chinese medicine practitioner or a registered dentist attending the employee as an out-patient or in-patient in a hospital should be produced. Upon the employer’s request, a brief record of the investigation carried out and the treatment prescribed by the issuer of the medical certificate should also be produced.

* The medical certificate should specify the number of days on which, and the nature of the sickness or injury on account of which, the employee is unfit for work.

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Q2. Can paid sickness days be accumulated?
A2.

An employee can accumulate paid sickness days after having been employed under a continuous contract. Paid sickness days are accumulated at the rate of two paid sickness days for each completed month of the employee's employment during the first 12 months, and four paid sickness days for each completed month of employment thereafter. Paid sickness days can be accumulated throughout the whole employment period, but shall not exceed 120 days at any one time.

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Q3. How is sickness allowance calculated? When should it be paid?
A3.

The daily rate of sickness allowance is a sum equivalent to four-fifths of the average daily wages earned by an employee in the 12-month period preceding the sickness day or the first sickness day (if more than 1 consecutive sickness day). If an employee is employed for less than 12 months, the calculation shall be based on the shorter period.

In calculating the average daily wages, an employer has to exclude (i) the periods for which an employee is not paid his wages or full wages, including rest day, statutory holiday, annual leave, sickness day, maternity leave, sick leave due to work injuries or leave taken with the agreement of the employer, and any normal working day on which the employee is not provided by the employer with work; together with (ii) the sum paid to the employee for such periods.

Sickness allowance should be paid to the employee not later than the normal pay day.

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Q4. Can an employer dismiss an employee who is on paid sick leave?
A4.

An employer is prohibited from terminating the contract of employment of an employee on his paid sickness day, except in cases of summary dismissal due to the employee's serious misconduct. An employer who contravenes the above provision is liable to prosecution and, upon conviction, to a fine of $100,000. Besides, the employer is required to pay the following sum of money to the dismissed employee within 7 days after the day of termination:

(1)
payment in lieu of notice;

(2)
a further sum equivalent to seven days' wages as compensation**; and

(3)
any sickness allowance to which the employee is entitled.


The employee may also claim remedies for employment protection against his employer if he is dismissed other than for a valid reason as specified in the Ordinance.  (For details on the employment protection under the Employment Ordinance, please refer to “A Concise Guide to the Employment Ordinance” published by the Labour Department.)

** The further sum should base on the average daily wages earned by an employee in the 12-month period preceding the date of termination of contract. If an employee is employed for less than 12 months, the calculation shall be based on the shorter period.  In calculating the average daily wages, an employer has to exclude (i) the periods for which an employee is not paid her wages or full wages, including rest day, statutory holiday, annual leave, sickness day, maternity leave, sick leave due to work injuries or leave taken with the agreement of the employer, and any normal working day on which the employee is not provided by the employer with work; together with (ii) the sum paid to the employee for such periods.

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