Section 33

Sickness allowance

疾病津貼

Part VIA — Sickness Allowance (疾病津貼)

All legislation content is under active development and may contain errors. If you spot anything wrong, please use the report icon in the bottom-right corner.

Statutory Text

(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 .

(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.

(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.

(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.

(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.

(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.

(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.

(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.

(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.

(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.

(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;

(b) a day of leave taken by the employee with the agreement of his employer;

(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 ).

(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.

(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;

(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.

(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).

(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.

(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.

(4BAB) Subsection (4BAA)(b) shall not apply in the case of civil proceedings.

(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.

(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.

(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;

(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;

(ac) if the employee is subject to a Cap. 599 requirement due to the employee’s serious and wilful misconduct;

(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;

(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—

(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;

(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.

(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.

(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 .

(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 ( 15 of 2025 )) or a hospital in respect of which a person is licensed under the Private Healthcare Facilities Ordinance ( Cap. 633 );

(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;

(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.

(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.

(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.

(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 ).

(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.

Editorial Note:

	Commencement date: 1 November 1983.
⁺	Specified date: 17 June 2022.

No annotated cases found for this section yet. Case annotations are being expanded.

Need more cases about Section 33 of the Employment Ordinance?

Research with Casebird