Mind at Work:
Mental Health in the Asia Pacific Workplace
HONG KONG
Regulations and Policy Requirements
Is there a specific regulation in your jurisdiction that regulates mental health in workplace? Are employers required to have policies regarding mental health, i.e. to promote mental health awareness and protection?
There is no explicit requirement for employers to have dedicated mental health policies, but employers may have to protect employees’ mental health as part of their broader duty to ensure a safe workplace.
Leave Entitlements
Are employees with diagnosed mental health conditions entitled to paid or unpaid leave? If so, under what laws/policies and conditions?
Although mental health conditions do not have a specific statutory leave category:
- Employees may use paid sick leave under the Employment Ordinance (which may be accrued up to 120 days at any time).
- Additional sick leave may be unpaid once the accrued statutory paid sick leave days have been fully used up, unless company policy provides for paid sick leave outside of the statutory entitlement.
Employer Management of Suspected Conditions
May an employer require an employee with suspected mental health issues to leave the workplace or take time off? What level of evidence is required?
An employer may require an employee to stop working or take leave where there is a reasonable and justifiable basis, such as safety concerns (for the employee or others), particularly in roles that require full fitness and presence of mind at all times, or where the employee is unable to perform their duties.
However, any such action must be proportionate and non-discriminatory, including after making reasonable accomodation. It is therefore advisable for employers to have clear policies and procedures in place to manage these situations.
Medical Examination / Fitness for Work
Can an employer require an employee suspected of having mental health issues to undergo a medical examination or seek medical attention? Are there limits or procedural safeguards?
An employer may request an employee to undergo a medical examination or seek medical attention: if it is justified by the inherent requirements of the job and/or it is necessary for the employer to evaluate workplace safety and health obligations; and even in such case, employee consent should be obtained and the examination cannot be overly intrusive / for any discriminatory purposes.
Medical Costs / Insurance
Are treatment costs for mental health conditions covered by statutory medical insurance or employer-provided benefits?
Coverage depends on Insurance policy (if any) based on treatment type.
Additional coverage may be provided under private or employer-sponsored insurance.
Occupational Disease / Work-related Illness
Can mental health conditions be classified as occupational illnesses and be covered under occupational injury insurance? What criteria must be met?
Mental health conditions are not classified as occupational illnesses under Hong Kong law.
Disability Protections
Can employees obtain disability benefits or protections due to mental health conditions? Does the law recognize mental illness as a disability?
Mental health illnesses, when certified, can qualify as a disability under Hong Kong law, granting access to specific anti-discrimination protections, financial assistance, and social welfare support schemes.
Termination
Can an employer terminate an employee with a mental health condition: (i) when the employee is unable to return to work; or (ii) for other business reasons unrelated to the condition? What legal risks (e.g., unfair dismissal, discrimination) arise?
An employer may terminate:
(i) If the employee cannot return to work: Possible if incapacity is proven and prolonged and employer has provided reasonable accomodation; Must follow lawful termination and pay all applicable statutory and contractual payments.
(ii) For other reasons:
Must not be discriminatory;
Risk of unlawful termination and/or discrimination claims if at all linked to mental health condition.
Confidentiality and Data Protection
What are the employer’s obligations regarding confidentiality, collection, use and storage of employee mental health information and medical records?
Employers must:keep employee medical information confidential; comply with the Personal Data (Privacy) Ordinance; collect/use/disclose health data only with lawful basis or consent.
Reasonable Accommodation
Is the employer required to provide reasonable accommodation to employees with mental health conditions? Examples: flexible hours, reduced workload, remote work
No, Hong Kong law does not expressly mandate “reasonable accommodation” in general employment, but if the employer does not provide "reasonable accomodation", it points towards discrimination.
Anti-Discrimination
Are mental health conditions protected under anti-discrimination laws? What conduct constitutes discrimination?
Mental health is not specifically protected as a standalone category, but mental illnesses and psychological conditions are recognised under the definition of "disability" under the Disability Discrimination Ordinance.
In Hong Kong, unlawful discrimination involves treating a person less favorably or applying unfair conditions based on protected attributes under four core ordinances: the Sex Discrimination Ordinance, Disability Discrimination Ordinance, Family Status Discrimination Ordinance, and Race Discrimination Ordinance. Prohibited conduct spans direct and indirect discrimination, harassment, vilification, and victimization.
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