Disclaimer: All information provided by 大成Dentons
FAQs on Employment and Labor Issues during Novel Coronavirus Outbreak
What date will the Chinese 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 ( 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 Hubei 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 Hubei 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.
To what time will the local government postpone the resumption of work?
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.
1000s of Foreign TV Channels
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?
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.
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?
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.
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.
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.
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 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.
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?
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.
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
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 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
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.
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?
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.
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.
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.
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.
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)?
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.
Where an employer encounters production and operation difficulties caused by an 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 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.
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.
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 institutions or medical institutions.
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.
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.
If an employee refuses to cooperate in providing personal health information, is it likely to be construed as a violation of the 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 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
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.
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:
Translation and proofreading: Shane Luo, Joanie Zhang
Further edited by #ExpatRights Team
Want to share an opinion?
Leave a comment below!