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Coronavirus Emergency Measures Legal Brief | Q & A Part 1
In order to implement the requirements of a Level 1 Response For Public Health Emergencies, to effectively prevent the spread of pneumonia caused by new coronavirus infection, and to effectively maintain the safety and health of the public, the State Council issued a “Notice of the general office of the state council on the extension of the Spring Festival Holiday in 2020” on January 26, 2020 (“Extension Notice”), stating that the Spring Festival Holiday will be extended to February 2, 2020, which is 3 days more than the previously announced holiday. Following this Notice, Shanghai Municipality, Chongqing Municipality, Guangdong Province, Jiangsu Province, Zhejiang Province, as well as some cities and economic development zones issued additional local announcements regarding further postponement of the resumption of work (“Postponement Notices”).
Following the above “Postponement Notices”, many HR executives and other managers have raised questions about how to arrange for the resumption of work and about the treatment of employees. Below, for your reference only, we have summarized some common questions, explained our understandings, and offered some suggestions.
Please kindly note that the following opinions are mainly based on the regulations and policies related to Shanghai, and they should also not be interpreted as formal legal advice. The development of the epidemic and related emergency measures are happening quickly and with uncertainty, and the regulations and rules can and likely will be adjusted by the competent authorities at any time. We will pay close attention to the development of the situation and the updates of related rules and policies and adjust our opinions accordingly.
- What is the difference between the Extended Spring Festival Holiday (January 31st to February 2nd) and the Postponed Days (February 3rd to February 9th)?
- Extended Spring Festival Holiday (“Extended Holiday”)
The Extended Holiday ordered by State Council should be considered temporary legal prevention and control measures taken by the government to fight against the Coronavirus. It is mandatory and must be enforced by every employer. An employer has, in principle, no right to request an employee to work, and shall pay the normal salary for the Extended Holiday.
- Postponed Days
The Postponed Days, according to regional announcements, are regulatory documents formulated by local governments to be applied within their jurisdictions. Although the legal effect is limited, in practice, such documents will usually be accepted and recognized as valid by courts or relevant authorities.
According to the announcement of the Shanghai Municipal Human Resources and Social Security Bureau (“SH Labor Bureau”), the Postponed Days can be considered as “paid rest days”. Except for the enterprises in certain industries[1], most enterprises are required to follow the requirements to postpone the resumption of work.
During the Postponed Days, employers shall pay employees’ salaries as normal; for employees who undertake work, time worked shall be regarded as overtime work, and the employer shall either arrange compensatory future leave or pay overtime salary according to the relevant laws and regulations, which, generally speaking, is twice the normal salary.
- Is it allowed to arrange for employees to work at home?
As mentioned above, during the Extended Holiday, in principle, the employer has no right to request the employees to come to the company to work or even work at home.
The Postponed Days are provided for the express purpose of reducing contact infection due to people gathering together. As such, employers are not allowed to require employees to come to the company to work without advanced approval by the authorities. Home-office work is actually suggested within the policy of the SH Labor Bureau. However, employees who are undertaking work at home shall be considered as working overtime, and the employer should in principle compensate as working on rest days as described above.
Under such circumstances, it is suggested that employers issue detailed arrangements and rules regarding work at home to avoid any possible dispute about working time, etc.
- Is it allowed to deduct the Postponed Days from the paid annual leave?
The Postponed Days are considered to be paid rest days, so there is no legal basis for deducting them from paid annual leave. For employees who applied previously for paid annual leave that occurs during the Postponed Days, it is suggested that employers “return” the requested annual leave days to avoid any potential dispute.
- Is it allowed to request that employees make up the Postponed Days afterward?
Considering that the Postponed Days are an emergency measure taken by the government for protecting the public, and it is from a certain perspective an obligation for the employees to take leaves. Therefore, it is not allowed to request the employees to make up the Postponed Days afterward.
- What are the possible consequences if an employer disregards local regulations on postponement?
The local administrative regulation documents are effective within the appropriate jurisdiction. Therefore, if an employer refuses to obey them and forces employees to return to work from February 3, 2020, there might be the following consequences:
1) Administrative punishment by the administrative department;
2) Severe legal liabilities, if the employer’s actions cause a worsening of the epidemic or other serious impacts;
3) An employee who refuses to return to work shall under no circumstances be considered as absent from work.
- How to treat employees who cannot return to work on time due to the emergency situation?
Generally speaking, normal leave application rules shall apply. If the absence will be long, a “waiting for work by agreement” (“协商待岗”) and suspension of labor contract may be considered.
(1) Apply for personal leave.
If there are no special regulations or agreements between the employer and employee, the personal leave is unpaid. Social security during the period of personal leave shall be paid normally. The employer should keep documents related to the employee’s application for personal leave (such as emails, audio, and video recordings, etc.).
(2) Apply for sick leave.
Employees who are recovering from infection by the virus, or may not feel well for other reasons can take sick leave. The employer can request that the employee provide proper justification and documents related to the sick leave (such as diagnosis, payment vouchers, etc.) according to internal company regulations.
Payment during sick leave depends on agreements between the employer and the employee, as well as internal company regulations. If no special agreements or company regulations exist, it depends on local policies on payment for sick leave in the workplace where the labor contract is performed.
(3) Apply for annual leave.
During any annual leave, the employee shall be deemed to be on duty and shall be paid full salary. The employer should keep documents related to the employee’s application or the arrangements of the employer (such as annual leave application form, notice form, cancellation form, etc.)
(4) Wait for work by agreement.
If an employee does not return to work for a long time, the company may arrange for the employee to wait for work after consultation and reaching an agreement. During the waiting period, the “waiting for work agreement” or the “change of labor contract” shall be signed to stipulate the treatment during the period of waiting for work.
(5) Suspension of labor relations (not termination).
Although the Labor Contract Law does not provide for the suspension of a labor contract, this is actually accepted in practice. During the suspension of the labor contract, the labor relationship shall be retained. If the circumstances leading to the suspension disappear and conditions for continuing the labor contract are applicable, the performance of the labor contract shall continue; if the conditions for continuing to perform the labor contract are not applicable, the labor contract shall be terminated. If the parties continue to perform the labor contract, the period of suspension shall not be included in the term of the labor contract.
- May employees who cannot return to work on time due to isolation, traffic restrictions and other prevention and control measures be treated as absent?
Such circumstances cannot directly be treated as absenteeism. However, companies can require employees to provide supporting documents to prove isolation or traffic restrictions. For example, diagnosis and treatment certificate from the hospital, written materials of the community/neighborhood or village committee, notice documents of traffic restriction issued by the government.
The employee should also explain the situation to the company promptly, and follow leave application procedures according to company regulations. If the employee fails to follow leave application procedures, the company should remind the employee to apply and at the same time give the employee the opportunity to explain. The company can sanction the employee according to its internal rules and regulations, however, it is not recommended to directly terminate the labor contract as a punishment.
Notes:
[1] 1) The logistics industry involves the transportation of epidemic prevention and control materials, and as household services, wholesale markets, vegetable markets, and supermarkets are closely related to the protection of people’s livelihoods;
2) Enterprises in the industry chain necessary for the epidemic prevention and control materials, such as the production of medical devices, drugs and protection appliances, should start work in advance and increase production capacity;
3) For enterprises that have been producing continuously during the Spring Festival and without any additional personnel returning to Shanghai, if continuing to produce will not cause any personnel turnover, they can maintain the current situation and continue production. At the same time, these enterprises should take relevant prevention and control measures and report to the epidemic prevention and control headquarters of the town, street or the park.
If you have questions about this topic, or other legal consequences of the Emergency Measures, contact Maggie or Philippe on WeChat, or at maggie.jia@dawo-lf.com or philippe.snel@dawo-lf.com.
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