Full legislation
s.33
Sickness allowance
(1)
An employee who has been employed by his employer under a continuous contract
for a period of 1 month or more immediately preceding a sickness day shall be paid
by his employer sickness allowance in accordance with this section and
section
35
.
(Amended
1 of 1977 s. 2
;
48 of 1984 s. 14
)
(2)
Subject to subsection (2A), an entitlement to sickness allowance shall accrue at
the rate
of—
(a)
2 paid sickness days for each completed month of the employee’s employment
under the continuous contract with his employer during the first 12 months of
such employment; and
(b)
4 paid sickness days for each such month thereafter,
and may be accumulated from time to time up to a maximum of 120 paid
sickness days.
(Replaced
57 of 1983 s. 5
)
(2A)
In the case of an employee who has been employed by his employer under a
continuous contract for a period of 1 month or more immediately preceding the
commencement
*
of the Employment (Amendment) Ordinance 1983 (
57 of 1983
), the employee’s entitlement to sickness
allowance shall, with effect from and without prejudice to the entitlement to
sickness allowance accrued at such commencement, accrue at the rate prescribed by
subsection (2) as amended by that Ordinance, and his employment for part of a month
(if any) at such commencement shall be taken into account in calculating his
entitlement to sickness allowance under and at the rate prescribed by that
subsection.
(Added
57 of 1983 s. 5
)
(3)
Subject to subsection (3C), an employee who takes less than 4 consecutive days
as sickness days shall not be entitled to be paid sickness allowance in respect
thereof.
(Amended
22 of 1981 s. 7
)
(3A)
Where a female employee who is pregnant or who has given birth to a child and
who is required to attend a medical examination in relation to her pregnancy or post
confinement medical treatment, any day on which she is absent from work for such
examination or treatment shall be a sickness day.
(Added
22 of 1981 s. 7
)
(3B)
Where a female employee suffers a miscarriage, any day on which she is absent
from work by reason of such miscarriage shall be a sickness day.
(Added
22 of 1981 s. 7
)
(3C)
A female employee who has an entitlement to a sickness allowance under this
section shall, notwithstanding subsection (3), be paid sickness allowance for every
sickness day under subsection (3A) or (3B), and subsections (4), (4A), (5), (5A) and
(7) shall apply to any such sickness day and sickness allowance in respect thereof.
(Added
22 of 1981 s. 7
. Amended
57 of 1983 s. 5
)
(4)
Subject to subsections (5) and (5A), an employee who takes 4 or more
consecutive days as sickness days shall be entitled to be paid sickness allowance
for the total number of sickness days taken by him, but not exceeding the number of
paid sickness days accumulated by him, under subsections (2) and (2A), immediately
before the commencement of the sickness days taken.
(Replaced
57 of 1983 s. 5
)
(4A)
The number of sickness days in respect of which an employee has been paid
sickness allowance under subsection (4) shall be deducted in accordance with
section 37(1B)
from the total number of paid sickness days
accumulated by him.
(Added
57 of 1983 s. 5
)
(4B)
Subject to subsection (4BAA), an employer shall not terminate a contract of
employment of an employee otherwise than in accordance with
section 9
on
any sickness day taken by the employee in respect of which sickness allowance is
payable under this section.
(Replaced
7 of 2001 s. 8
)
(4BAAA)
For the purposes of subsections
(4BA
)(
b)
, (4BAAB) and (4BAAC),
wages
(
工資
) includes any sum paid
by an employer in respect
of—
(a)
a day of maternity leave, a day of paternity leave, a rest day, a sickness
day, a holiday or a day of annual leave taken by the employee;
(Amended
21 of 2014 s. 9
)
(b)
a day of leave taken by the employee with the agreement of his employer;
(c)
a normal working day on which the employee is not provided with
work;
(d)
a day of absence from work of the employee due to temporary incapacity for
which compensation is payable under
section 10
of the Employees’
Compensation Ordinance (
Cap. 282
).
(Added
7 of 2007 s. 9
)
(4BA)
An employer who contravenes subsection (4B) shall be liable to pay to the
dismissed
employee—
(a)
the sum which would have been payable if the contract had been terminated
by the employer under
section 7
; and
(b)
a further sum equivalent to 7 times the daily average of the wages earned by
the employee
during—
(i)
the period of 12 months immediately before the date of termination of
the contract of employment; or
(ii)
if the employee has been employed by the employer for a period shorter
than 12 months immediately before the date of termination of the contract,
the shorter period.
(Replaced
7 of 2007 s. 9
)
(Added
103 of 1995 s. 13
)
(4BAAB)
In calculating the daily average of the wages earned by an employee during the
period of 12 months or the shorter
period—
(a)
any period therein for which the employee was not paid his wages or full
wages by reason
of—
(i)
any maternity leave, paternity leave, rest day, sickness day, holiday
or annual leave taken by the employee;
(Amended
21 of 2014 s. 9
)
(ii)
any leave taken by the employee with the agreement of his
employer;
(iii)
his not being provided by his employer with work on any normal working
day; or
(iv)
his absence from work due to temporary incapacity for which
compensation is payable under
section 10
of the Employees’
Compensation Ordinance (
Cap. 282
);
and
(b)
any wages paid to him for the period referred to in paragraph (a),
are to be disregarded.
(Added
7 of 2007 s. 9
)
(4BAAC)
For the avoidance of doubt, if the amount of the wages paid to an employee in
respect of a day specified in subsection (4BAAA) is only a fraction of the amount
earned by the employee on a normal working day, the wages and the day are to be
disregarded in accordance with subsection (4BAAB).
(Added
7 of 2007 s. 9
)
(4BAAD)
Despite subsection
(4BA
)(
b)
, if for any reason it is impracticable
to calculate the daily average of the wages earned by an employee in the manner
provided in that subsection, the amount may be calculated by reference to the wages
earned by a person who was employed at the same work by the same employer during the
period of 12 months immediately before the date of termination of the employee’s
contract of employment, or, if there is no such person, by a person who was employed
in the same trade or occupation and at the same work in the same district during the
period of 12 months immediately before the date of termination of the employee’s
contract of employment.
(Added
7 of 2007 s. 9
)
(4BAA)
An employer who terminates the continuous contract of employment of an employee
on any sickness day taken by the employee in respect of which sickness allowance is
payable under this section shall be taken for the purposes of subsection (4B) to
terminate the contract otherwise than in accordance with
section
9
—
(a)
unless the contrary is proved; or
(b)
subject to subsection (4BAB), unless the employer proves
that—
(i)
he purported to terminate the contract in accordance with that section;
and
(ii)
at the time of such termination, he reasonably believed that he had a
ground to do so.
(Added
7 of 2001 s. 8
)
(4BAB)
Subsection
(4BAA
)(
b)
shall not apply in the case of civil
proceedings.
(Added
7 of 2001 s. 8
)
(4BB)
Any employer who contravenes subsection (4B) shall be guilty of an offence and
shall be liable on conviction to a fine at level 6.
(Replaced
7 of 2001 s. 8
)
(4C)
Where an employer terminates a contract of employment of an employee on any
sickness day taken by the employee, the employer shall, notwithstanding the
termination of the contract of employment, pay to the employee sickness allowance
for the total number of sickness days in respect of which the employee would have
been entitled to be paid sickness allowance under subsection (4), and subsections
(5), (5A) and (7) shall apply to any such sickness day and sickness allowance in
respect thereof as if the contract of employment had not been terminated.
(Added
57 of 1983 s. 5
)
(5)
An employer shall not be liable to pay sickness allowance to an employee in
respect of any sickness
day—
(a)
subject
to
paragraph (ab) and subsections (5A) and (5B), unless such day
is a day specified in the appropriate medical certificate as a day on which, in
the opinion of the registered medical practitioner, registered Chinese medicine
practitioner or registered dentist who issued the certificate, the employee was,
is or will be, as the case may be, unfit for work on account of sickness or
injury;
(Amended
57 of 1983 s. 5
;
5 of 1995 s. 9
;
16 of 2006 s. 7
;
13 of 2020 s. 10
;
5 of 2022 s. 7
)
(ab)
(if the employee is absent from work due to the employee’s compliance with
a
Cap. 599
requirement) subject to subsection (8),
unless such day is shown, by any of the means specified in
Part 2 of
Schedule 12
, to be a day on which the employee is subject to the
Cap. 599
requirement;
(Added
5 of 2022 s. 7
)
(ac)
if the employee is subject to a
Cap. 599
requirement due to the employee’s serious and wilful misconduct;
(Added
5 of 2022 s. 7
)
(b)
if, where the employer is operating a recognized scheme of medical
treatment, the employee, at any time during the sickness or injury, unless he is
a patient in a hospital, refuses without reasonable excuse to submit himself for
treatment under the scheme;
(Amended
57 of 1983 s. 5
;
5 of 1995 s. 9
;
16 of 2006 s. 7
)
(c)
if, where the employer is operating a recognized scheme of medical
treatment, the employee, having submitted himself for treatment by the
registered medical practitioner, registered Chinese medicine practitioner or
registered dentist engaged by the employer for the purposes of the scheme or
being a patient in a hospital, at any time during the sickness or injury,
without reasonable excuse,
disregards—
(Amended
16 of 2006 s. 7
)
(i)
the advice of such medical practitioner, Chinese medicine practitioner
or dentist; or
(ii)
the advice of the registered medical practitioner, registered Chinese
medicine practitioner or registered dentist who is attending him in the
hospital;
(Amended
57 of 1983 s. 5
;
5 of 1995 s. 9
;
16 of 2006 s. 7
)
(d)
if the unfitness for work of the employee is caused by his serious and
wilful misconduct;
(e)
if the unfitness for work of the employee is on account of an injury or
occupational disease in respect of which compensation is payable in accordance
with the Employees’ Compensation Ordinance (
Cap.
282
);
(f)
in respect of which the employee has received holiday pay.
(5AA)
Where a medical certificate issued for the purposes of subsection (5
)—
(a)
is issued by a registered medical practitioner, subsection
(5
)(
b)
applies only if the recognized scheme of medical treatment
operated by the employer covers medical treatment given by a registered medical
practitioner;
(b)
is issued by a registered Chinese medicine practitioner, subsection
(5
)(
b)
applies only if the recognized scheme of medical treatment
operated by the employer covers medical treatment given by a registered Chinese
medicine practitioner; or
(c)
is issued by a registered dentist, subsection
(5
)(
b)
applies
only if the recognized scheme of medical treatment operated by the employer
covers medical treatment given by a registered dentist.
(Added
16 of 2006 s. 7
)
(5A)
Where an employee takes paid sickness days
(other than any
sickness day that falls within paragraph (b) of the definition of
sickness
day
in
section 2(1)
) entered in
category 2 of the record kept in respect of him under
section 37(1A)
, he
shall, if so required by his employer, produce to the employer, in respect of each
such sickness day, a medical certificate that is issued by a registered medical
practitioner, registered Chinese medicine practitioner or registered dentist
attending the employee as an out-patient or in-patient in a hospital.
(Added
57 of 1983 s. 5
. Amended
5 of 1995 s. 9
;
16 of 2006 s. 7
;
5 of 2022 s. 7
)
(5B)
For a sickness day under subsection (3A) on which a female employee attends a
medical examination in relation to her pregnancy, the employer is liable to pay
sickness allowance for that day if the employee produces, in relation to the
examination, a certificate of attendance described in
section 33A
.
(Added
13 of 2020 s. 10
)
(6)
For the purposes of this
section—
(a)
the expression
hospital
(
醫院
) means a hospital or specialist clinic
maintained by the Government, a military hospital, a public hospital within the
meaning of the Hospital Authority Ordinance (
Cap.
113
),
The Chinese Medicine Hospital of Hong Kong (as defined by
section
2(5)
of The Chinese Medicine Hospital of Hong Kong Ordinance
(
Cap.
655
))
or a hospital in respect of which a person is licensed under the Private
Healthcare Facilities Ordinance (
Cap. 633
);
(Amended
81 of 1991 s. 2
;
2 of 2012 s. 3
;
34 of 2018 s. 152
and
E.R. 5 of
2018
;
15 of 2025 s. 3
;
E.R. 1 of
2026
)
(b)
in subsection
(5
)(
a)
, the expression
appropriate
medical certificate
(
適當的醫生證明書
)
means—
(i)
where, on the day on which the certificate is issued, the employer
is operating a recognized scheme of medical
treatment—
(A)
a certificate issued by the registered medical practitioner,
registered Chinese medicine practitioner or registered dentist
engaged by the employer for the purposes of the scheme;
(B)
(if the scheme does not cover medical treatment given by a
registered medical practitioner) a certificate issued by any
registered medical practitioner;
(C)
(if the scheme does not cover medical treatment given by a
registered Chinese medicine practitioner) a certificate issued by
any registered Chinese medicine practitioner;
(D)
(if the scheme does not cover medical treatment given by a
registered dentist) a certificate issued by any registered dentist;
or
(E)
(if the employee refuses with reasonable excuse to submit
himself for treatment under the scheme) a certificate issued by any
registered medical practitioner, registered Chinese medicine
practitioner or registered dentist;
(Replaced
16 of 2006 s. 7
)
(ii)
where, on the day on which the certificate is issued, the employee
is a patient in a hospital, a certificate issued by the registered
medical practitioner, registered Chinese medicine practitioner or
registered dentist attending the employee in the hospital; or
(iii)
in any other cases, a certificate issued by any registered medical
practitioner, registered Chinese medicine practitioner or registered
dentist.
(Replaced
57 of 1983 s. 5
. Amended
5 of 1995 s. 9
;
16 of 2006 s. 7
)
(7)
Every medical certificate shall, in addition to specifying the number of days
on which, in the opinion of the issuer of the certificate, the employee was, is or
will be, as the case may be, unfit for work, specify the nature of the sickness or
injury on account of which, in the opinion of the issuer of the certificate, the
employee was, is or will be, as the case may be, unfit for work and, in the case of
a medical certificate produced by an employee for the purposes of subsection (5A),
the medical certificate shall, if so required by his employer, contain or be
accompanied by a brief record of the investigation carried out and the treatment
prescribed by the issuer of the certificate.
(Amended
57 of 1983 s. 5
;
5 of 1995 s. 9
;
16 of 2006 s. 7
)
(8)
An employee is entitled to sickness allowance in respect of a sickness day that
falls within paragraph (b) of the definition of
sickness day
in
section 2(1)
only
if—
(a)
the period of the employee’s absence from work lasts for 4 or more
consecutive days; and
(b)
the sickness day falls on or after the specified date.
(Added
5 of 2022 s. 7
)
(9)
For the purposes of subsection (8), it does not
matter—
(a)
whether the period of the employee’s absence from work begins before the
specified date;
(b)
whether the period relates to more than one
Cap.
599
requirement; and
(c)
whether the period relates to more than one order, notice, declaration,
direction or other instruction or request (however described) made, issued,
published or given under the Prevention and Control of Disease Ordinance (
Cap. 599
).
(Added
5 of 2022 s. 7
)
(10)
In subsections (8) and (9
)—
+
specified date
(
指明日期
) means the day on which the Employment
(Amendment) Ordinance 2022 (
5 of 2022
) is published in
the Gazette.
(Added
5 of 2022 s. 7
)