Holiday/annual leave/sick leave/maternity leave and their relevant payments
An employee who is employed under a continuous contract is entitled to not less than one rest day in every period of seven days. A rest day is defined as a continuous period of not less than 24 hours during which an employee is entitled to cease working. Rest days are not equivalent to statutory holidays. An employee employed under a continuous contract is entitled to have rest days AND statutory holidays.
Rest days are appointed by the employer. They can be granted on a regular or irregular basis. If the rest days are on regular basis, it is sufficient for the employer to inform the employee of the arrangements. If they are on an irregular basis, then the employer must inform the employee of the appointed rest days during the month before the beginning of the particular month.
An employer can substitute rest days with the consent of the employee, in which case the substitution must be within the same month before the original rest day or within 30 days after it. If a statutory holiday falls on a rest day, then it should be taken on the day following the rest day.
My boss ordered me to work this Sunday (which is my usual rest day). Can I reject his order?
You may reject such an order because an employer must not compel an employee to work on a rest day except in the event of a breakdown of machinery or plant or in any other unforeseen emergency. However, employees (except young persons under the age of 18 who are employed in the industrial field) may work voluntarily on a rest day.
For any rest day on which the employee is required to work, the employer should substitute another rest day within 30 days after the original rest day. The employer should notify the employee of the arrangement within 48 hours after the employee is required to work.
Offences and Penalties
Employers who fail to grant rest days to employees or compel employees to work on their rest days are liable to prosecution and, upon conviction, to a fine of $50,000.
Employees, irrespective of their length of service, are entitled to the statutory holidays:
If employees are required to work on a statutory holiday, then their employers must give them an alternative holiday within 60 days before or after that statutory holiday with 48 hours' advance notice.
Employees are entitled to annual leave with pay after having been employed under continuous contracts for every 12 months. Employees' entitlement to paid annual leave increases progressively from 7 days to a maximum of 14 days according to length of service.
Annual leave pay is a sum equivalent to the normal wages that employees would have earned if they had worked during the period of annual leave.
For employees who are employed on piece rates or whose daily wages vary from day to day, the annual leave pay should be a sum equivalent to the average daily wages earned on the days that the employees worked during every complete wage period. The wage period should be a period of not less than 28 days and not more than 31 days immediately preceding the annual leave or the day on which the employment contract terminates.
Employers are under a statutory obligation by virtue of section 41G of the Employment Ordinance to keep annual leave records.
Offences and Penalties
Employers who fail to grant annual leave or pay annual leave pay to employees are liable to prosecution and, upon conviction, to a fine of $50,000.
Employees can accumulate paid sickness days after having been employed under continuous contracts. Paid sickness days are accumulated at the rate of two paid sickness days for each completed month of employment during the first 12 months of employment, and four paid sickness days for each completed month of employment thereafter. Paid sickness days can be accumulated up to a maximum of 120 days.
A sickness day is a day on which an employee is absent from work by reason of being unfit due to injury or sickness. A paid sickness day is a sickness day on which an employee is entitled to be paid sickness allowance.
Female employees who are employed under continuous contracts immediately before the commencement of their maternity leave and having given a notice of pregnancy to their employers are entitled to the following periods of leave:
- a continuous period of 10 weeks' maternity leave;
- if confinement occurs later than the expected date of confinement, a further period equal to the number of days from the day after the expected date of confinement to the actual date of confinement;
- may enjoy an additional period of leave for not more than four weeks on the grounds of illness or disability due to the pregnancy or confinement.
When an employee is absent from work to attend medical examination in relation to her pregnancy, post confinement medical treatment or miscarriage, any day on which she is absent will be counted as a sickness day.
How is sickness allowance calculated? When will I be entitled to sickness allowance?
Sickness allowance is a sum equivalent to four-fifths of the normal wages that employees would have earned if they had worked.
For employees who are employed on piece rates or whose daily wages vary from day to day, the sickness allowance should be a sum that is equivalent to the average daily wages earned on the days of a complete wage period. The wage period should be a period of not less than 28 days and not more than 31 days immediately preceding or expiring on the first sickness day. Sickness allowance should be paid to the employee not later than the normal pay day.
In general, employees are entitled to sickness allowance if:
- the sick leave taken is not less than four consecutive days (unless for any day off taken by a female employee for pregnancy check-ups, post confinement medical treatment or miscarriage);
- the sick leave is supported by an appropriate medical certificate; and
- they have accumulated sufficient number of paid sickness days. (Note: Paid sickness days can be accumulated up to a maximum of 120 days. It is accumulated at the rate of 2 paid sickness days for each completed month of employment under a continuous contract during the first 12 months of employment, and 4 paid sickness days per month thereafter.)
Employees are NOT be entitled to sickness allowance under the following circumstances:
- the employee, without reasonable excuse, refuses treatment by a company doctor of a medical scheme that is recognised by the Director of Health or disregards the advice of that doctor;
- the sickness day falls on a statutory holiday on which the employee is entitled to holiday pay; or
- compensation is payable under the Employees' Compensation Ordinance.
Offences and Penalties
Employers who fail to pay sickness allowance to employees are liable to prosecution and, upon conviction, to a fine of $50,000.