FAQs On Employment & Labor Issues During Coronavirus Outbreak

February 4







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关于现有疫情下雇佣与劳动相关问题的常见问题

FAQs on Employment and Labor Issues during Novel Coronavirus Outbreak



Q1:中国春节法定节假日延长到几号?

What date will the Lunar New Year holiday be extended to? 

A: 依照《国务院办公厅关于延长 2020 年春节假期的通知》(国办发明电〔2020〕1 号),延长 2020 年春节假期至 2 月 2 日(农历正月初九,星期日)。经国务院批准,湖北地区适当延长春节假期至 2 月 13 日(包含春节期间来湖北探亲访友休假的外地人员)。因疫情防控不能休假的职工,应根据《中华人民共和国劳动法》规定安排补休,未休假期的工资报酬应按照有关政策保障落实。

According to the Circular of the General Office of the State Council on the Extension of the 2020 Lunar New Year Holiday ([2020] No.1,) this Chinese Lunar New Year holiday will be extended to 2nd February 2020 (9th day in the lunar first month, Sunday). Approved by the State Council, the Chinese Lunar New Year holiday in the region will be appropriately extended to 13th February 2020 (including non-local people who come to visit relatives and friends or have a vacation in during this Chinese Lunar New Year). The employees unable to take leave due to epidemic prevention/control shall take deferred shift days/rest according to the PRC Labor Law, and their compensation or treatment shall be paid following relevant policies if they cannot duly enjoy pertinent holidays or leaves.


Q2:本地延迟复工至何时?

To what time will the local government postpone the resumption of work?

A:各地政府目前均已发布公告指定了本地的复工时限,除已经列明的相关行业及其他涉及重要国计民生的相关企业外,不得随意复工。

The announcement of the designated date for resumption of work has already been issued by pertinent local governments, and none resumption shall be allowed except those in the listed industries and those related to significant national interest and people’s livelihood. 



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Q3:符合复工条件的企业需要提前复工如何处理?

What kind of processes should be followed if an enterprise meets the conditions for the resumption and needs to resume work ahead of the given schedule? 

A:一般情况下,需要向基层政府或其授权的疾控机构进行备案及获得批准。企业极有可能需要承诺提供必要的防护用品(包括口罩、体温计等)、限制员工的外出、准备疾病防控预案,以及在发现病例时立即报告并停工。

In general, the application shall be filed and approved by the root-level governments or its authorized disease control agency. Enterprises are very likely to be required to commit to providing necessary protective equipment (including masks, thermometers, etc.), restricting employees’ going out, preparing disease prevention and control plans. Immediate reports and temporary suspension are also required once the case of the disease has been discovered. 



Q4:如果企业在不符合复工条件下擅自复工,或虽符合复工条件但未办理备案等将导致什么后果?

What sorts of consequences will be rendered if an enterprise resumes to work against the conditions of resumption, or fails to file and get approved while meeting the conditions of resumption? 

A:《中华人民共和国传染病防治法》第七十七条规定,单位和个人违反本法规定,导致传染病传播、流行,给他人人身、财产造成损害的,应当依法承担民事责任。

According to Article 77 of the PRC Law on the Prevention and Treatment of Infectious Diseases, any unit or individual in violation of the provisions of this Law, resulting in the spread or prevalence of infectious diseases, leading to physical harm or property loss to others shall bear civil liabilities accordingly.


进一步,根据《中华人民共和国刑法》第三百三十条规定,违反传染病防治法的规定,有下列情形之一,引起甲类传染病传播或者有传播严重危险的,处三年以下有期徒刑或者拘役;后果特别严重的,处三年以上七年以下有期徒刑:……(四)拒绝执行卫生防疫机构依照传染病防治法提出的预防、控制措施的。单位犯前款罪的,对单位判处罚金,并对其直接负责的主管人员和其他直接责任人员,依照前款的规定处罚。

Furthermore, it’s stipulated in Article 330 of the PRC Criminal Law that, “whoever, in violation of the provisions of the PRC Law on the Prevention and Treatment of Infectious Diseases, commits any of the following circumstances and causes the spread or a great risk of a Class-A infectious diseases shall be sentenced to a fixed-term imprisonment less than three years or criminal detention; if the consequences are especially serious, the offender shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years: 

(4) according to PRC Law on the Prevention and Treatment of Infectious Diseases, those who refuse to implement the preventive and control measures proposed by the health and anti-epidemic agency shall be sentenced to a fine if it commits any crimes mentioned in the preceding paragraph as a unit, and the executives directly in charge and those with direct responsibilities for the crimes shall be punished according to the provisions of the preceding paragraph.



Q5: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 the Hubei region). During these days, 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 the 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 a rest day and salary shall be deducted accordingly. For the time being, the said question still needs to be clarified and settled by relevant authorities soon. 


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, a pertinent officer from 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. 



FAQs On Employment & Labor Issues During Coronavirus Outbreak

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Q6: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 a period if an enterprise has to further postpone the resumption of work after designated date under the impact of existing epidemic? 

A:在一个工资支付周期内的,应按劳动合同规定的标准支付职工工资;超过一个工资支付周期的,支付的工资不得低于本市工资支付规定明确的生活费标准。通常标准为当地最低工资标准的 70%-80%,也有个别是当地最低工资标准,具体以当地规定为准。

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 a local minimum wage, and for some localities, it should be the local minimum wage, the enterprise shall handle the same according to local regulations. 



Q7: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 Shanghai remain in 14-day and are voluntarily quarantined at home be regarded as work attendance?

A:在员工自行隔离的 14 天里,企业应当落实隔离的要求,可安排员工在家远程办公,企业也应当按照其正常出勤的工资标准向职工支付劳动报酬。

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. 


根据已有口径,部分城市许可优先安排员工使用带薪年休假。但在未能协商一致的情况下如何处理,尚需等待进一步的口径澄清。

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 



Q8: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? 

A:按正常工作期间工资支付。

It shall be paid on a normal attendance basis.


《传染病防治法》第四十一条第二款规定,用人单位应当向职工支付隔离期间的工作报酬。

The 2nd paragraph of Article 41 of the PRCLaw on the Prevention and Treatment of Infectious Diseases stipulates that the employer shall pay the remuneration of the quarantine period to the employees. 


2020 年 1 月 24 日,人力资源社会保障部办公厅《关于妥善处理新型冠状病毒感染的

肺炎疫情防控期间劳动关系问题的通知》(人社厅发明电〔2020〕5 号)的有关规定

亦明确了此项原则。

The Circular on the Proper Treatment of Labor Relations during the Prevention and Control of the Pneumonia Outbreak Caused by the Novel Coronavirus Infection ([2020] 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.



Q9: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 a 2019-nCoV infection, what will his/her salary be? 

A:如医护及相关工作人员感染新型冠状病毒的,按工伤处理。

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 a work-related injury.


如除医护人员外的员工感染新型冠状病毒的,一般情况下,在隔离期内的,工资依照相关法规正常支付;脱离隔离的,企业应根据其工龄核定其医疗期,并按当地规定支付医疗期期间的病假工资。

If any employee other than medical staff is infected with the novel coronavirus, generally it should be handled as follows: (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.


若员工因为用人单位之工作指令(例如抢险救灾指令或“冒险”指令)而感染相关病毒的,相关雇主责任需视乎具体案情依工伤抑或侵权法律处置。

If an employee is infected with such a virus due to the employer’s working instruction (such as the employer’s rescue order or “risky” order), the potential employer liability therein under the work-related injury or tort law shall be determined on a case-by-case basis.



Q10: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? 

A:如果在以上期间劳动合同到期的,分别顺延至职工医疗期期满、医学观察期期满、隔离期期满或者政府采取的紧急措施结束。

If a Labor Contract expires during the aforementioned periods, it shall be extended to the expiration or end of said periods.


FAQs On Employment & Labor Issues During Coronavirus Outbreak


Q11: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, underperformance, or major change)? 

A:根据劳动合同法第四十二条的规定,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、密切接触者属于特殊群体,受到劳动法的特殊保护,企业不得以经济性裁员、以及其他无过失性辞退为由解除与前述职工的劳动关系。

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. 



Q12: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 an existing epidemic, how to ensure its normal production and operation order? 

A:已有文件显示,企业因受疫情影响导致生产经营困难的,可以通过与职工协商一致采取调整薪酬、轮岗轮休、缩短工时等方式稳定工作岗位,尽量不裁员或者少裁员。

Based on given official documentation, if an employer encounters production and business operation difficulties caused by an existing epidemic, it may stabilize the employment using adjusting remuneration, work shifts, shortening working hours, etc. through consensus with the employees, so as not to lay off or lay fewer off.


就配合此项倡议的企业是否可享有额外财务扶持,尚待各地政府进一步明确。

For the enterprise that has cooperated with such a suggestion, if there are any special governmental financial aids or supports, further clarifications are expected to be given by the local governments. 



Q13: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? 

A:企业和员工都有义务配合政府进行有关传染病的调查,不得隐瞒信息。

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.


《中华人民共和国传染病防治法》第十二条第一款规定,在中华人民共和国领域内的一切单位和个人,必须接受疾病预防控制机构、医疗机构有关传染病的调查、检验、采集样本、隔离治疗等预防、控制措施,如实提供有关情况。疾病预防控制机构、医疗机构不得泄露涉及个人隐私的有关信息、资料。第三十一条的规定,任何单位和个人发现传染病病人或者疑似传染病病人时,应当及时向附近的疾病预防控制机构或者医疗机构报告。

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 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 institutions or medical institutions.


企业应政府相关防疫部门的要求,进行人员信息收集和监控工作的,员工没有理由拒绝。企业应政府其他相关职权部门要求,做好疫情防治工作,员工也应当积极配合,履行公民应尽义务。

When an employer collects and monitors personnel information at the request of local CDC or a 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 to fulfill their due citizen obligations.


企业因自身管理需要,收集员工相关信息,应当做好沟通工作,收集信息不应当超过疫情防范措施的必要范围,并且不得泄露所收集到的个人信息;发现员工为疑似患者时,除必须向疾病防控机构/医疗机构披露外,不得随意对第三人披露收集的前述信息。

When an employer collects relevant employees’ information according to its own management needs, it shall have communication with employees. The employer shall not collect any information beyond the 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. 



Q14: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 the working discipline?

A:需视乎案件具体情形。若员工存有敏感疾病指征,且所在用人单位需依照相关法律法规向监管部门履行报告义务的,员工拒绝配合的行为可能会构成违纪。

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 following relevant laws and regulations, the employee’s non-cooperation may constitute a violation of the working discipline.



注:本问答仅为提供信息之目的,不构成正式法律意见。上述信息均是截至 2020 年 2 月 1 日对公开文件结合主管领导发言的解读,若相关主管部门或人民法院嗣后发布相反意见或指示的,以相关意见或指示为

准。

Note: This FAQ is only for providing information purposes and shall not constitute a 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 are any otherwise or contrary opinions or instructions from competent authorities or people’s courts subsequently, the applicable opinions or instructions shall prevail.


鉴于中国劳动法的地方性特征,就当地详细信息与口径,还请联系我们列明的对应联系人,未列明地区,可以联系大成劳动法与人力资源管理专业委员会垂询。

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 Dentons Labor Law and Human Resources Committee for further information: 


FAQs On Employment & Labor Issues During Coronavirus Outbreak
FAQs On Employment & Labor Issues During Coronavirus Outbreak


翻译及校对:罗欣、张洁

Translation and proofreading: Shane Luo, Joanie Zhang

Further edited by # Team




 Source: 大成Dentons




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