Maggie Jia
With another series of outbreaks across the country, people are taking it seriously again. China has recently seen several days of more than 100 new local infections per day, prompting various levels of government to issue circulars encouraging people to stay put during Chinese New Year in the interest of preventing further spread of the virus. Fearing that employees might be quarantined and unable to return to work due to the outbreak, some companies also issued notices themselves stating that employees should not leave their current city during the holiday. This, of course, brings up some compliance issues – do such requirements comply with the various applicable laws and regulations?
Circulars from the Chinese Government
On December 30, 2020, the task force of the State Council on COVID-19 issued a circular regarding epidemic prevention and control during the upcoming New Year’s Day and Spring Festival 2021 (“the Circular”). Article 14 of the Circular points out that the Government encourage employees to take time off, but remain in the city where they work. To facilitate this, companies and public institutions should be more flexible about arranging vacations according to production and work conditions, and considering employees’ circumstances.
Local governments also issued corresponding circulars to supplement the Circular, based on different local situations related to epidemic prevention. For example, the Beijing CDC (Center for Disease Control) recommended that residents not leave Beijing unless necessary; the Shanghai MCHP (Municipal Center for Health Promotion) reminded the public to make reasonable arrangements, and not travel unnecessarily, as well as to avoid rush hours; the Shenzhen Government clearly stated that civil servants and the employees in public institutions and state-owned enterprises must apply for permission if they want to leave the city. The list of municipalities issuing such encouragement to residents is long.
Can Companies Actually Force Employees to Stay?
From our point of view, companies do not have the right to actually force employees to stay, especially if the concern is only related to productivity. Employees’ willingness must be a key factor when making flexible arrangements in accordance with the Circular. That is, if the employees insist on going home during Chinese New Year, the companies should not say, ‘no, absolutely not.’
However, companies may negotiate with employees on this subject, given that there the situation is unpredictable – low-risk areas could suddenly become medium or even high-risk areas within a matter of days, if there is a massive travel rush.
Our Suggestions
Based on DaWo’s rich experience with labor dispute resolution, we suggest that companies to try their best to form agreements or arrangements with employees prior to the holiday, and formalize them in writing.
While this is not universal, we do think it is probably better to encourage employees to stay during the upcoming holiday, such as offering appropriate incentives to do so or to make arrangement in advance about the absence of work after the 7-day holiday due to possible epidemic control measures.
Again, this depends on your specific circumstances, we suggest considering the following:
- Employees may be unable to return to work, since it is entirely possible that they might be in mandatory medical quarantine for up to 28 days after the holiday (14 days centralized medical observation, 7 days home medical observation, 7 days community health monitoring);
- Request that an employee planning to return home for the holiday clarify his/her schedule, such as the specific destination (down to the street), return time, transportation method, etc.
- Reach an agreement with the employee about items related to any absence period beyond the statutory holiday, such as salary, whether it will be settled through paid leave first and then unpaid leave, access and facilities for remote work, specific work arrangement, applicable rules, etc.
If you have any questions about this article, please do not hesitate to reach out to DaWo Law Firm Shanghai.
