Posted by
Momoftwo
15 yrs ago
I was wondering if anyone (who's been in same situation) as I am now....... can share their advice what they did and how.
My very good driver is suddenly in hospital. At the moment, we don't know how long his recovery will take, and even after recovery whether he can still work like before. Or who knows, he MIGHT resign on his own.
But because I have two children that depends on his driving them to and from school, to and from activities, and lessons, and my helper and my dog..... and I am a full time working mom. I need to plan right now before my kids head back to school next Monday.
I don't know what to do..... husband says I can't work then.....
We live in New Territories, school bus doesn't reach our area.
Please give me your advice.
Thanks.
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- Hire another driver? There must be some somewhere... (students, taxi drivers, etc.)
- Book a regular taxi to help?
- Ask a relative?
- Ask the neighbours?
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Momoftwo, am I correct in assuming that you want to know what your responsibilities are regarding the driver who is sick?
ie. how long do you pay for his sick leave, can you terminate him etc etc?
This PDF explains your responsibilities - you can also call the immigration department. I've found them to be very helpful in the past regarding foreign domestic helpers.
http://www.labour.gov.hk/eng/public/wcp/FDHguide.pdf
(Chapter 5 explains the medical stuff)
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Chapter 5: Medical Attention and Sickness Allowance
For employer
Q5.1 Should I pay for the medical expenses incurred by my helper when he/she
is ill or injured?
A �� Yes. When your helper is ill or injured, you shall provide free medical
treatment to him/her whether or not it is attributable to his/her
employment. Free medical treatment includes medical consultation,
maintenance in hospital and emergency dental treatment. In this
connection, employers are encouraged to consider taking out suitable
medical insurance policy for their helpers to cover the said liabilities.
�� For the avoidance of doubt, the revised standard employment contract
introduced on 1 April 2003 makes it clear that, under the new contract,
employers are not responsible for providing free medical treatment during
the period when the helper leaves Hong Kong of his/her own volition and
for his/her personal purposes e.g. on home leave
Q5.2 Can I appoint a medical practitioner for my helper in times of illness or
injury?
A Under the employment contract, a helper shall accept medical treatment by
any registered medical practitioner as provided by the employer. It is
advisable to reach prior agreement with your helper as to which medical
practitioner should be consulted in times of illness or injury.
For both employer and helper
Q5.3 Under what circumstances is a helper entitled to sickness allowance?
A �� An employer should pay the helper sickness allowance if :
�� he/she has accumulated the number of paid sickness days;
�� the sick leave taken is not less than four consecutive days; and
�� the sick leave is supported by an appropriate medical certificate.
�� Paid sickness days are accumulated at the rate of two paid sickness days
for each completed month of service during the first 12 months of
employment; and four paid sickness days for each month of service
thereafter subject to a maximum of 120 days.
Q5.4 What is the rate of sickness allowance? When should it be paid?
A The daily rate of sickness allowance is equal to four-fifths of the average daily
wages* of the helper. It should be paid not later than the normal pay day.
Q5.5 Can an employer dismiss the helper who is on paid sick leave?
A �� No, except in cases of summary dismissal due to the helper’s serious
misconduct. Otherwise, it is an offence under which the employer is
1 5
liable to prosecution and, upon conviction, to a fine of HK$100,000.
�� The employer is also required to pay the helper:
�� wages in lieu of notice;
�� a further sum equivalent to seven days’ wages as compensation*;
and
�� his/her entitled sickness allowance.
�� The helper may also claim remedies for unreasonable and unlawful
dismissal under the part of Employment Protection of the Employment
Ordinance (see Chapter 9).
* For details of the calculation of sickness allowance and compensation, please refer to
"A Concise Guide to the Employment Ordinance". Copies of the Guide can be obtained
at the branch offices of the Labour Relations Division or downloaded from the
homepage of the Labour Department.
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Slammy, thanks for the info.
I have that right in front of me and am quite familiar with that PDF file.
However, my problem right now is obviously he is going to be on sick leave for some time.... months at least. So what am I supposed to do ? I am paying for a driver who cannot drive. No service. SO I need someone to replace him.... but I am told I would not get the approval from the immigration if I hired a 2nd driver, and financially, it's too much for us.
What is the "best" solution to this situation?
Yes, I can hire a taxi in and out... but that' s not a long term solution for us.
Thanks for any enlightening advice or solution.
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Well, I would firstly call immigration to ask and clarify the situation.
Secondly, there must be some local drivers that you can hire - in which case you wouldn't be hiring a foriegner and wouldn't have to sponsor them.
Don't know where to find a local driver though...
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Did you have any medical insurance for your driver, if so you might be able to calim for a temporary replacement, while your dirver is ill.
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Update:
Driver won't be able to work for at least 6 months to a year. Doctor says he will give him sick leave note up to 1 year.
My insurance only covers medical expenses.
WHAT TO DO ?!?!?!?! He needs medical care too, am I expected to ask my helper to take care of him for a whole year ???? This is so unfair! Can't work, won't go home, can't lay him off, but still have to pay his salary, and have to have someone take care of him.
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Hi there,
How long have you employed the driver for... according to the info I post to you... he earns two paid sick days each month during the first year.
Then four paid days for each month of service thereafter subject to a maximum of 120 days.
The daily rate of sickness allowance is equal to four-fifths of the average daily
wages of the helper.
So of course you don't have to pay for him for an entire year because that would be more than the maximum of 120 days that he's allowed. Also, it's not full pay.
Regarding the question of WHO cares for him though - I'm not sure. Because of course if we work, and get sick, our company pays but they don't care for us. But then again this driver lives with you. This is a grey area, but I would say that the driver has to care for himself right? You provide him a roof over his head as in the contract, but that may not mean that you also provide care for him if he's incapacitated.
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Thanks Slammy. But this means I have an extra person living under my roof who is NOT my family, but not working as an employee. But simple living here until he runs out the contract.
Sure, he's not handicapped, but he does need medical care, and if there are others in the house, surely, he would ask for help. Can my helper say no ? So I will have a driver who sits around my place, watching TV, reading newspaper, and not doing anything for a year. He still gets holiday? He still gets to go out? But he just doesn't work ?
How fair is that?
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how is sick leave allowance calculated? If the helper is with us for 5 years... we are in the 3rd contract, 8 months into it. So is it 16 days? or is it calculated from the 1st contract.... meaning 120 days then?
Thanks.
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You have very important questions there and a unique situation so you should really call immigration. They've been very helpful to me in the past... when I've been able to get through on the phone!
Or you could try emailing them the specifics because they're good on the email too...
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Called Labour Dept and immigration.
1) Yes, I have to pay him 120 days (4/5 of the salary) because it counts from the 1st year he works with us. Not by contract.
2) Even if your helper is not able to work, on sick leave allowance, the helper must live with you. (According to Immigration), But according to labour department, if a helper is on sick leave for a long period of time, the helper can stay outside and not live at your home. ( So I think I trust immigration on this one).
The labour department said, like right now, he's in the hospital... therefore, he's not living at your house. (I laughed at this ridiculous reply).
3) I cannot terminate his contract as long as he has sick leave allowance backed up by doctor's note. However after 120 days, since no salary, you HOPE the helper will resign on his own. Esp in my case... since his sick leave will be longer than the end of our contract.
Sigh.
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ok good, now you know your negotiation baseline.
my suggestion: calculate all the money you own him, throw something on top to entice him and ask him to leave right away
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yes... question is: what if he doesn't want to leave ?!?!?!?! He wants his medical coverage here.
120 days plus 7 days ...etc. plus annual leave.... you know how much drivers get paid ? We are bankrupt now.
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But what does it mean... if he's going to be sick a long time, he doesn't need to live with you.
So where does he live then?
And do you have to pay for him to live somewhere else?
At the end of the day, you're his employer so of course the labour ordinance tries to protect the rights of the workers. That's why they advise us to get insurance for our helpers. What will your insurance cover?
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Insurance covers Medical expenses only. Nothing for replacement driver, and expenses incurred because loss of service (taxis, part time driver...)
Labour department says it's ok for him to live elsewhere if he's sick and can't perform his duties.
Immigration says It's NOT ok for him to live elsewhere.
When I argued "So I have to have someone at MY house to take care of him while he watches TV, reads newspapers, and do nothing at my house? " Officer at immigration says, "No, of course not, that's why you have to force him to go home to Philippines after you have paid him or he has spent his 120 sick leave days."
Where is my protection as an Employer? This is so out of budget for us.
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You need to ask your driver what he wants to do. For all you know, maybe he would prefer to go home.
Unfortunately, it doesn't seem like you have much choice regarding paying a lump sum of sorts.
Maybe some negotiating points to get him to go home are:
- you'll hire him once he's well enough to return to HK.
- tell him you're concerned about who will take care of him if he stays in your house? Afterall, your helper is hired to care for your kids and work for you.
- after 120 days, that's it. There's no money for him. Better to take a lump sum home and be with family.
Hopefully he'll be reasonable about it. If he's not, then I can't imagine he can have a happy time, hanging out in someone's house when it's clear nobody wants him there and are unwilling to help him.
So I guess the immigration department had no advice for you regarding your situation an the employer, out of budget, and with no driver?
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While I understand the situation is awkward, I don't sense much empathy for your "very good" driver. He msut be pretty ill to be out of commission for 12 months and who can blame him for wanting to receive treatment in HK? The hospitals here must be much better than the hospitals in his country of origin.
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Bumpydog,
excuse me.... I have absolute empathy for my driver. Please don't comment what you don't fully understand. What I wrote here is to seek advice how to protect myself and my family in this situation. The labour laws in HK completely protects my driver. For some ridiculous reasons, the labour laws of HK applies to DH just like a person who is working in a company..... I believe this is a huge problem with the system.
In this case, the "company" is my home! My household. If the employee is sick for such a long time, I think I should have the right to have him live outside while I pay for his medical expenses, and his sick leave allowance. This is insane.
Empathy is one thing, reality is another. Who has empathy for me right now?
I might have to quit my job now because I can't afford to hire another driver on top of this "long term" ill one, and how am I going to get him to leave ? He already made it clear, he wants to stay here for the medical checks for the rest of the year, and he doesn't want to go home, but he doesn't want to live with us during this time ! And, there is no one to take care of him here, his family are all back in Philippines.
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I find the fact that he wants to stay, but doesn't want to live with you during sick leave is a bit peculiar, do you think he might be over emphasizing his sickness?
if he stayed with you, you would be able to observe him 'moving about quite normally', he couldn't play the 'dying duck' for that length of time. If he was 'living elsewhere, he could be doing the Odd jobs-earning money, and getting sick pay! maybe he has that in mind!
Is there no chance you could speak to his consulant regarding the amount of time he honestly needs to recover. This is a silly situation, I do empathise with you, HK rules go Ott with these helper/drivers etc. There is one thing for sure, when it comes to him requiring a reference for a new job, sometime in the future, it won't auger well for him having taken so much time off, legitimate or not. I would certainly be suspect of somebody who has taken so much time off, how reliable are they going to be?. In a different case scenario, if somebody had extensive surgery and chemo/or radiotherapy and more surgery-provable- that would be differant,
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What exactly is wrong with him?
Does he need to be bedridden, is he limited in mobility, is it life threatening?
As an employer, are you entitled to know ?
It has to be a serious illness if he is going to be out of action for such a long time.
Since you have children, and if he is going to live in your house, I think you
should know what is his illness. After all, what if something happens in the house?
What if he has a seizure or god forbid dies suddenly in your house in front of your kids ?
Do you have to pay the medical expenses or is he covered under the public hospital?
I think it is too much for you to give up your job. Sit him down and discuss the situation with
him. You just have to arrive at the right price $$$$.
OR "Get it in writing from the Labour Department that the driver can live outside".
Move him outside, and if Immigration Dept. create a fuss, then refer them to "Labour Dept".
Just don't tell Labour Dept you plan to give it to immigration.
Sit in the Labour Dept and don't MOVE until you get that letter. It works.
It is typical example of govt. depts not communicating with each other but that is there probem.
Perhaps
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Momoftwo
I am in te same boat as cougar88. What is wrong with the driver?
Have you seen the doctor's diagnosis?
Do you think the doctor has been over generous in the amount of time he has signed off? As an employer you do have the right, under the EO, to send the employee to a doctor of your choice for a second opinion when they are signed off for long term sick leave.
Perhaps if your driver has been to a "sympathetic" doctor, (and as Susie1 suggests, has put it on a bit) another Doctor may make a different diagnosis and sign off for less time off.
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Just to empathise a bit with the driver... keep in mind that his job is "driving". If, for example, he has a back injury, then you cannot sit for long periods. So while he may be ok doing other things, perhaps his type of injury prevents him from driving.
It's the same for us. If we injure ourselves... but that injury prevents us from doing our job, then we're entitled to sick leave, even if we're not debilitated severely.
If Momoftwo has any doubts, she can always get a second medical opinion.
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No doubts with diagnosis. He is still in the hospital.
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oh, dear. If he is hospitalized then he is really ill.
Have you spoken to his doctor to find out how long he will be in hospital, when he
is discharged how long it is for him to recover, and really if he is in fit condition
to drive your kids around.
You can't give up your job.
Can you hire a part-time driver ? Sometimes, people use a regular cab driver to pick up
the kids to and from school. Unfortunately, this is one time when you and husband just
have to dig into your savings.
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Momof2
You didn't say if the driver is hospitalized as a result of his job, an accident or something. If he has some sort of long term health care issue that means he can be fit to work as a driver, then the Dr. will declare him as fit or unfit. You are "on the hook" for everything if the injury or whatever is a result of working under your employment.
There are all kinds of taxi drivers who will book themselves to pick up and deliver kids. They do it all the time... This city is full of drivers. This is that big of a problem.
You bigger problem is how can the driver recover? He probably needs to consult his family and see how they are feeling about him being so far from home and so sick. Have you had a chance to speak to him about this? This should be you second step after getting a replacment to drive your kids to school. Ask the school if they have any suggestions!
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