FAQ on Employment and Labor Issues during Novel Coronavirus Outbreak
With the ongoing epidemic outbreak of the novel coronavirus pneomonia (COVID-19), businesses with a presence in China are facing a variety of new challenges. As a membership organisation, we will support this via knowledge sharing amongst BritCham members, as well as external partners during this challenging time.
Today BritCham member – Dentons, is here to answer some of your common questions and concerns about the Employment and Labor Issues during Novel Coronavirus Outbreak.
Q1：延长假期及推迟复工期间的工资支付标准？What should be the salary payment criterion during extended CNY holidays and postponed days?
A：就春节延长假期，目前主要是指 1 月 31 日，2月1日和 2 月 2 日（湖北地区延长至2 月 13 日）。若是工作的，参照既往惯例，一般理解为休息日加班，即优先安排调休或支付 200%的加班费。若是正常休息的，除了 2 月 2 日本来就是休息日，工资给付不存在争议。但是，1 月 31 日和 2 月 1 日（湖北地区还包括 2 月 3 日至 2 月 7 日，2 月 10 日至 13 日）的工资待遇目前存有一定分歧。有观点认为，该等延长假期属于国务院规定的特别假期，也属于因政府采取特别措施而导致无法正常工作的期间，其工资应当正常发放；也有观点认为，该等延长假期属于休息日，无薪，将导致员工被扣薪。目前仍有待于相关有权部门予以明确。
The extension of the Chinese Lunar New Year holiday mainly refers to 31st January 1st February and 2nd February (it is extended to 13th February in Hubei region). During these days, for the services provided will be deemed as overtime during rest days by referring previous precedents and practice, where such overtime should be compensated with time off first or 200% of daily or hourly salary. There will be no issues on salary payment if the employees rest as usual during 2nd February for it was originally arranged as a rest day. However, disputes may arise from whether to pay on 31st January and 1st February (in Hubei region, it also includes 3rd February to 7th February, 10th February to 13th February). There are two points of view on this: (i) Some believe that salary ought to be paid as normal for the fact that such extended leave is the special leave arranged by the State Council, and also the period during which the enterprises are unable to normally operate due to the special measures taken by the government. (ii) While others argue that no salary ought to be paid since such extended leave should be regarded as rest day and salary shall be deducted accordingly. For the time being, said question still needs to be clarified and settled by relevant authorities in the near future.
就推迟复工期间，若无需工作的，则普遍被理解为带薪休假或停工停产的第一个周期（即工资同样需正常支付）。但若需员工工作的，则存在分歧，目前多数地方认为， 在该等期间工作的属于正常出勤，工资正常支付即可（部分地方会非强制性地建议企业给予酌定奖励）。但上海的劳动行政部门有关人员已经在新闻发布会中表态，在该等期间工作（包括在家办公）属于休息日加班，优先安排调休或支付 200%的加班费。
As for the salary payment issues during the delayed resumption period, it is generally understood and construed as the first period of paid leave or temporary suspension (salary shall be paid as normal) if work is not required. However, disputes may arise if employees are required to work as most local governments hold that those who work in the delayed resumption period should be paid as normal since it may be regarded as normal attendance (some local governments would like to recommend the enterprises to provide some discretionary rewards for the same). However, in a press conference, pertinent officer from Shanghai labor authority had already expressed that works during this period (including working at home) shall be regarded as overtime work on a rest day, and compensatory leave or 200% of daily or hourly salary shall be arranged.
Q2：如果企业因疫情影响，需要进一步推迟复工的，之后期间企业应如何支付员工工资？How should be the employees’ salary paid during such period if an enterprise has to further postpone the resumption of work after designated date under the impact of existing epidemic?
If it is within one normal salary payment circle, the employees’ salary shall be paid according to the standard stipulated in the Labor Contract; for those beyond the said period, the salary shall be paid no lower than local living allowance stipulated in salary payment regulations. Such living allowance usually would be 70%-80% of the local minimum wage, and for some localities, it should be the local minimum wage, the enterprise shall handle the same according to local regulations.
Q3：从外地返回的员工，员工自行在家隔离14天期间，是否应当视为出勤？Should employees coming back to office remain in 14-day and are voluntarily quarantined at home be regarded as work attendance?
During these 14 days when the employees are being voluntarily quarantined, the enterprise can, as required by the quarantine policy, arrange the employee to work at home be paid under the salary standards of normal attendance.
Based on the known information and guideline, some cities allow the employees to take paid annual leaves. However, if consensus cannot be achieved, further information and guideline from authority are still expected to be clarified and confirmed
Q4：隔离期间、医学观察期间的工资如何支付？What about the salary during quarantine and medical observation?
It shall be paid on a normal attendance basis.
The 2nd paragraph of Article 41 of the PRC Law on the Prevention and Treatment of Infectious Diseases stipulates that the employer shall pay remuneration of the quarantine period to the employees.
The Circular on the Proper Treatment of Labor Relations during the Prevention and Control of the Pneumonia Outbreak Caused by the Novel Coronavirus Infection ( No. 5) issued by the General Office of the PRC Ministry of Human Resources and Social Security on 24th January 2020 also sets forth this principle.
Q5：如员工确诊2019新型冠状病毒感染后，职工的工资待遇如何支付？If an employee has been diagnosed as 2019-nCoV infection, what will his/her salary be?
If the medical staff and relevant staff are infected with the novel coronavirus due to performance of duties, it shall be deemed as and dealt with work-related injury.
If any employee other than medical staff is infected with the novel coronavirus, generally it should be handled as following: (i) For the salary during quarantine, it should be paid normally according to pertinent regulations; and (ii) for the part after the quarantine, the employer should check and ascertain his/her medical treatment period according to his/her length of service, and pay sick leave salary during the medical treatment period according to local regulations.
If an employee is infected with such virus due to the employer’s working instruction (such as the employer’s rescue order or “risky” order), the potential employer liability therein under tort law shall be determined on a case-by-case basis.
Q6：如员工在隔离期间、医学观察期间，及因政府实施隔离措施或采取其他紧急措施期间劳动合同到期的，是否可以按到期解除与员工的劳动关系？If an employee’s Labor Contract expires during the quarantine or medical observation, or during the period when the government implements quarantine measures or takes other emergency measures, can the employer terminate the labor relationship with the employee on the expiration date?
If a Labor Contract expires during the aforementioned periods, it shall be extended to the expiration or end of said periods.
Q7：企业可否以无过失性解除（即经济性裁员、医疗期满、不胜任本职工作、劳动合同订立时所依据的客观情况发生重大变化）在隔离治疗期间或医学观察期间以及因政府实施隔离措施或采取其他紧急措施不能提供正常劳动的新型冠状病毒感染的肺炎患者、疑似病人、密切接触者的劳动合同？Can an employer terminate the Labor Contract with the employee who is a pneumonia patient, suspected patient, or close contact of novel coronavirus during his/her isolation treatment or medical observation, or unable to fulfill his/her employment obligations as a result of the government’s quarantine measures or other emergency measures, with the excuse of dismissal without cause (namely, terminations due to redundancy, expiration of medical treatment period, under performance, or major change)?
According to Article 42 of the PRC Employment Contract Law, said groups people are specially protected categories where they are immune to economic layoff/redundancy or dismissal without cause.
Q8：因受疫情影响导致生产经营困难的，如何保障企业正常生产经营秩序? Where an employer encounters production and operation difficulties caused by existing epidemic, how to ensure its normal production and operation order?
Based on given official documentation, if an employer encounters production and business operation difficulties caused by existing epidemic, it may stabilize the employment by means of adjusting remuneration, work shifts, shortening working hours, etc. through consensus with the employees, so as not to lay off or lay fewer off.
For the enterprise who has cooperated with such suggestion, if there is any special governmental financial aids or supports, further clarifications are expected to be given by the local governments.
Q9：企业是否有权利收集和报告员工的出行信息等相关资料？Does an employer have the right to collect and report the travel information and other relevant information of its employees?
Both the employer and the employee are obliged to cooperate with the government in the investigation of infectious diseases. Neither of them shall withhold relevant information.
According to the first paragraph, Article 12 of the PRC Law Prevention and Treatment of Infectious Diseases, any unit or individual within the territory of the People’s Republic of China shall accept the infectious-disease-related investigations, examinations, sample collection, isolation treatment, and other preventive and control measures of disease prevention and control institutions and medical institutions, and shall truthfully provide relevant information. Disease prevention and control institutions and medical institutions shall not disclose relevant information or materials involving personal privacy. According to Article 31 of the PRC Law Prevention and Treatment of Infectious Diseases, anyone who has found an infectious disease patient, or a suspected patient shall promptly report to the nearby disease prevention and control institution or medical institution.
When an employer collects and monitors personnel information at the request of local CDC or pertinent authority, employees shall not refuse. The employer shall, at the request of other competent government departments, do a good job in epidemic prevention and control, and employees shall also actively cooperate as to fulfill their due citizen obligations.
When an employer collects relevant employees’ information according to its own management needs, it shall have a communication with employees. The employer shall not collect any information beyond reasonable scope of epidemic prevention needs, or disclose the personal information collected improperly. If an employee is suspected of being a patient of infectious disease, the employee shall not disclose the aforementioned collected information to any third party except to the disease prevention and control institutions and medical institutions.
Q10：如员工拒绝配合提供个人健康信息，是否可能构成违纪？If an employee refuses to cooperate in providing personal health information, is it likely to be construed as a violation of working discipline?
It will be determined on a case-by-case basis. If the employee has indications of sensitive diseases, and the employer is obligated to report to the regulatory authorities in accordance with relevant laws and regulations, the employee’s non-cooperation may constitute a violation of working discipline.
Note: This FAQ is only for providing information purpose and shall not constitute formal legal opinion. The information herein is the interpretation based on existing published polices and speech of officers from regulatory authorities till 1st February 2020. If there is any otherwise or contrary opinions or instructions from competent authorities or people’s courts subsequently, the applicable opinions or instructions shall prevail.
Due to the PRC employment and labor regulations varied from localities, for details, please contact our contact persons set forth below. For regions that have not been listed for the time being, please contact respective area Dentons Office lawyers.
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