The relevant provisions in the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance 2006 (the “Amendment Ordinance”) with respect to the Employment Ordinance have come into effect on 1 December 2006.
The Amendment Ordinance made various amendments to the Employment Ordinance recognising registered Chinese medicine practitioners for the purpose of employees’ rights and entitlement to benefits under the Employment Ordinance, covering sickness allowance, maternity protection, long service payment and termination without notice by the employee.
A registered Chinese medicine practitioner means a person who is registered under the Chinese Medicine Ordinance and whose name appears on the Register of Chinese Medicine Practitioners.
Sickness Allowance
From now on, a registered Chinese medicine practitioner may issue medical certificates under the Employment Ordinance certifying an employee’s unfitness for work on account of his sickness or injury for the purpose of determining sickness day and sickness allowances. In addition, the recognised scheme of medical treatment operated by the employer may cover medical treatment given by a registered Chinese medicine practitioner.
Maternity Protection
A registered Chinese medicine practitioner is also entitled to issue a medical certificate confirming or certifying (i) pregnancy; (ii) the expected date of confinement; (iii) a further period of maternity leave required as a result of any illness or disability suffered by a female employee arising out of her pregnancy or confinement; (iv) unfitness of a pregnant employee to handle heavy materials, or to do any work hazardous or harmful to the pregnancy.
However, a registered Chinese medicine practitioner is still not entitled to give a certificate specifying the date of confinement in cases where:
(i) the confinement of an female employee takes place (a) before any notice is given, or (b) after notice is given but before the commencement of the 10 weeks’ maternity leave; or
(ii) the date of confinement is later than the expected date of confinement.
In addition, after a pregnant employee has submitted a medical certificate certifying her unfitness to carry out any heavy, hazardous or harmful work, the employer may arrange the employee to attend another medical examination to obtain a second opinion as to the employee’s fitness to undertake the work in issue. The medical examination may now be conducted by a registered Chinese medicine practitioner.
Long Service Payment
Generally speaking, where an employee who has been employed under a continuous contract for not less than 5 years of service at the relevant date, terminates his contract on the ground that he is certified as being permanently unfit to carry out the work he is engaged for, the employee may still entitled to long service payment provided that other requirements set out in the Ordinance have been complied with.
The employer may require the employee to undergo a medical examination to obtain a second opinion as to whether or not he is permanently unfit for that type of work and such medical examination shall be conducted by either a registered medical practitioner or registered Chinese medicine practitioner named by the employer.
Termination of contract without notice by employee
A registered Chinese medicine practitioner can now issue a medical certificate certifying that an employee is permanently unfit to carry the work he is engaged to do. With such a medical certificate, an employee may terminate his contract of employment without notice or payment in lieu of notice.
Transitional provision
There is a transitional provision in the Employment Ordinance setting out that the above changes only apply to medical certificates issued by a registered Chinese medical practitioner under the Employment Ordinance from 1 December 2006. In addition, as for certificates covering any days before the commencement of the Amendment Ordinance, the provisions will not apply to that period.
Mandatory Provident Fund Schemes (General) Regulation and the Mandatory Provident Fund Schemes (Exemption) Regulation
In line with the amendments to the Employment Ordinance, the Amendment Ordinance also includes related amendments to the above two regulations for the purpose of recognising the certificates issued by a registered Chinese medicine practitioner. These amendments have also become effective since 1 December 2006.
With the amendments, medical certificates issued by a registered Chinese medicine practitioner is now recognised in proving an employee’s incapacitation to perform the kind of work that he is engaged in, which entitling the employee to withdraw his accrued benefits in an MPF scheme. |