Maggie Jia
On December 7, 2022, the Joint Prevention and Control Mechanism of the State Council issued the “Notice on Further Optimizing and Implementing the Prevention and Control Measures for the New Coronary Pneumonia Epidemic” (Joint Prevention and Control Mechanism Zongfa [2022] No. 113) (hereinafter referred to as the “Notice”). As has been widely reported, the Notice calls for a relaxation (or optimization) of the restriction and control processes as it introduces ten new measures (hereinafter referred to as the “New Measures”) to deal with Covid-19 contamination outbreaks.
It must be noted that while pneumonia caused by COVID-19 is considered as a Class B infectious disease, currently it is still being handled as a Class A diseases according to the provisions of the “Law on the Prevention and Control of Infectious Diseases” (hereinafter referred to as the “Law”).
As the Omicron variant is gradually spreading within the general population, more and more questions arise about how the New Measures shall be applied to the workplace and to employment relationship. We expect that more detailed rules may be issued in the weeks to come by various authorities, but in the meanwhile we have tried to provide some answers to the most pressing questions based on common practice in terms of prevention and control measures and applying the general principles of Labor Contract Law.
When an employee catches COVID-19 or is listed as a close contact and is required to go under home quarantine for treatment or observation, shall the employee continue to receive his/her full salary?
The New Measures provide that infected patients and their close contacts are required to undergo either home or centralized quarantine in a treatment center. We believe this measure is still considered as part of the prevention and control measures for Class A infectious diseases imposed by the government. Hence, according to the second paragraph of Article 41 of the law, which specifically provides that if an employee has to undergo a quarantine for treatment or medical observation imposed by the government, the employer shall continue to pay his/her salary as if the employee was working normally.
However, if the employee remains absent from work to receive further medical treatment after the quarantine period is passed, such absence shall be considered as a medical leave and salaries shall be paid accordingly.
Can employees refuse to go to work (or travel for work) because they are concerned they may be infected at work or on the way to work?
As always, when facing such delicate situations, it is recommended to maintain an open dialogue and to try to come to a mutual understanding with the employees on special work arrangements. This may include measures such as limiting the number of people in the workplace at the same time, special leniency for leave applications, special travel arrangements, incentive remuneration, etc. In general, if remote work is possible, allowing those employees who are uncomfortable to work from home will probably be the most recommended and balanced alternative to consider.
However, where the employer considers that the employee must necessarily be on site to fulfill his/her work assignments, the employee can be made to abide by the normal attendance rules and may be held accountable in case of unjustified absence.
In addition, it is worth to mention that if employees are infected at work or on the way to work, such situation shall not be considered as a work-related illness unless they are medical staff who are working on the frontline fighting against the virus.
What to do if an employee displays symptoms but refuses to test for Covid-19 or refuses to quarantine after a positive test?
Any employer may refuse access to, or order an employee to leave the workplace if he believes that the employee may cause a threat to the health of his colleagues. As such an employee displaying obvious symptoms can be ordered to leave the workplace and to only return after having received a negative Covid-19 test result.
When an employee is infected, he/she should immediately report the information to his employer as well as to the local epidemic prevention and control institutions. Failing to do so may expose the employee to be reported to the epidemic prevention authorities and to undergo certain mandatory measures and eventually sanctions.
Can an employer impose specific control measures such as, for instance, mandatory daily testing to employees, and refuse access to those who do not test?
An employer may choose to set his own workplace access measures as he sees fit according to the situation. Such measures must obviously be reasonably justified and may not cause any illegal discrimination between employees.
Under certain circumstances, it may appear reasonable for an employer to request his employees to be tested regularly for possible Covid-19 contamination. This could be justified in those cases where a single contaminated employee could eventually cause a contamination cluster in the company which could force the employer to shut down an entire production plant for several weeks. Obviously, the costs of the tests should be undertaken by the employer.
It should be noted however that an employer may not force an employee to get vaccinated as this would infringe on the essential personal right of the employee. Moreover, and unless such measure is imposed by the competent authorities, an employer may not refuse access to the workplace to an unvaccinated employee.
The coming weeks and months will inevitably see the overall number of people contaminated with the Omircron variant increase exponentially. This will necessarily impact the workplace and the employment relationships. Managers will soon find themselves confronted with situations for which there are no clear rules or no rules or guidelines at all. Under such circumstances, it is of the utmost importance to quickly establish its own rules and policies so as to not leave a void which may quickly generate chaos. Employers should try to put together simple internal policies which align with the official government issued policies, abide by the provisions of the employment contract and those of the employee handbook and respects the fundamental rights of the employees. Besides that, and as always, when dealing with sensitive situations, it is essential to always maintain an open and transparent dialogue with the employees. Any measures decided should be perceived as fair and well-balanced by the employees and they should be applied in a coherent and equitable fashion.
DaWo’s employment team is experienced in managing delicate employment situations and can assist you in finding the appropriate solutions for any situation you may be facing in the coming weeks/months with regard to the Covid-19 epidemics situation.
