Hong Kong Ordinances

EMPLOYMENT ORDINANCE - SECT 15AA

Prohibition of assignment of heavy, hazardous or harmful work

(Past version on 01/12/2006).
(Past version on 30/06/1997).

(1) A pregnant employee may, on producing a medical certificate with an
opinion as to her unfitness to handle heavy materials, or to work in places
where gas injurious to pregnancy is generated, or to do other work injurious
to pregnancy, request her employer to refrain from giving her such work during
her pregnancy period.

(2) On receipt of a request under subsection (1), the employer may not
allocate to the employee the work specified in the medical certificate and, if
the employee is already performing such work, the employer shall remove her
from such work as soon as practicable but in any case not later than 14 days
after the date of the receipt of the request under subsection

(1) notwithstanding that-

   (a)  the result of the medical examination referred to in subsection

(3); or

   (b)  the determination of the Commissioner in subsection (6), may be
        pending.

(3) Where an employee has produced a medical certificate for the purposes of
subsection (1), the employer may arrange for the employee to attend another
medical examination, at the employer's expense, to obtain a second opinion as
to the employee's fitness to undertake the work at issue. (Replaced 16 of 2006
s. 5)

(3A) A medical examination referred to in subsection (3) shall be conducted by
a registered medical practitioner or registered Chinese  medicine practitioner
named by the employer, regardless of whether the medical certificate produced
by the employee was issued by a registered  medical practitioner or
registered Chinese medicine practitioner. (Added 16 of 2006 s. 5)

(4) The employer shall give the employee at least 48 hours' notice of the
examination under subsection (3) which is to be carried out within a period of
14 days after the date of the receipt of the employee's request made under
subsection (1).

(5) If the second medical opinion provides that the employee is fit to do the
specified work referred to in subsection (1) or if the employee refuses to
attend the medical examination as arranged by the employer under subsection
(3), the employer may refer the employee's request made under subsection (1)
to the Commissioner; the Commissioner shall take appropriate action, including
seeking further medical advice, to assist him in bringing about a
determination.

(6) When the Commissioner receives the employer's reference under subsection
(5), he may make a determination to-

   (a)  uphold the employee's request;

   (b)  rule that the employee's request is not supported;

   (c)  make such other rulings as he considers reasonable.

(7) The employer and the employee concerned in the reference shall comply with
any determination made by the Commissioner.

(8) Despite any change in the earnings of the employee as a result of her
transfer from heavy, hazardous or harmful work in accordance with this
section, payment for maternity leave under section 14(3A) or payment for
termination of employment under section 15(2)(a), (b) or (c) is to be
calculated on the basis of the daily average or monthly average (as
appropriate) of the wages earned by the employee during-

   (a)  the period of 12 months immediately before her transfer from heavy,
        hazardous or harmful work in accordance with this section; or

   (b)  if the employee has been employed by the employer concerned for a
        period shorter than 12 months immediately before her transfer from
        heavy, hazardous or harmful work in accordance with this section, the
        shorter period, and those sections are to be construed accordingly.
        (Replaced 7 of 2007 s. 8)

(9) Where-

   (a)  an employee is transferred from heavy, hazardous or harmful work in
        accordance with this section; and

   (b)  section 7(1D), 14(3D) or 15(2C) is applicable in calculating the
        maternity leave pay or any payment for termination of employment under
        section 15 payable to the employee, for the purpose of the
        calculation, the reference in section 7(1D), 14(3D) or 15(2C) to a
        person who was employed at the same work is to be construed as a
        reference to a person who was employed at the work performed by the
        employee immediately before her transfer. (Added 7 of 2007 s. 8)
        (Added 73 of 1997 s. 8)