Employment Ordinance

(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
)