In order to strengthen the prevention and control of pneumonia caused by the new coronavirus and to protect people’s lives and health, the general office of the state council and the local people’s governments have successively issued relevant documents to extend the Spring Festival holiday and delay the resumption of business operations.

On January 26th, 2020, the state council issued The Notice on the Extension of the Spring Festival Holiday from the General Office of the State Council, which stipulated that the holiday should be extended to February 2nd, 2020. In addition, local governments in Shanghai, Jiangsu Province, Zhejiang Province, Guangdong Province and Chongqing have issued policies requiring enterprises not to resume work earlier than 24:00 on February 9th, 2020, which means it shall be required to delay the resumption of work from February 3rd, 2020 to February 9th, 2020.

Under this premise, what actions shall be taken by enterprises in order to deal with the pneumonia caused by the new coronavirus in a timely fashion as well as handling its labor and personnel relations correctly? The following evaluation will analyze and answer possible questions related to labor law issues caused by the new coronavirus based on the current laws and regulations as well as local policies.

 

  1. Does the extended Spring Festival and delayed resumption of work belong to the statutory holiday?

They do not belong to the statutory holiday. The extension of the Spring Festival holiday is a special holiday temporarily added due to the need for epidemic prevention and control and should be regarded as rest days. The nature of the period of the delayed resumption of work has not been unified and the Bureau of Human Resources and Social Security of Shanghai has made it clear that this period shall be regarded as rest days.

 

  1. How should wages be paid to employees who work during the Spring Festival holiday, the extended Spring Festival holiday or the delayed resumption of work?
  • Spring Festival holiday (From January 24th, 2020 to January 30th, 2020)

– January 25th to January 27th is a statutory holiday, if enterprises make arrangements for their employees to work during this period, they shall pay the employee no less than 300% of his/her salary.

– January 24th, 28th, 29th and 30th shall be regarded as a shift holiday, enterprises can make arrangements for employees to take deferred holidays. In the case that the deferred holidays cannot be arranged, the enterprises shall pay the employee no less than 200% of his/her salary.

  • The Extended Spring Festival (From January 31st, 2020 to February 2nd2020):

Enterprises shall make arrangements for employees who cannot rest or return to work earlier to take deferred holidays; If the deferred holidays cannot be arranged, the employees shall pay employees no less than 200% of his/her salary.

  • The Delayed Resumption of Work (From February 3rd, 2020 to February 9th, 2020):
  • Shanghai:
    • For employees who cannot engage in regular labor due to pneumonia, enterprises shall pay their monthly salary according to the agreed standard in the labor contract.
    • For enterprises involved in ensuring the operation of the city, the prevention and control of the epidemic, protection of people’s lives and other important issues related to the national economy and people’s livelihood, such employees shall provide regular labor, the enterprise should be in accordance with the relevant provisions in relation to rest day and overtime and make arrangements for compensatory rest or pay no less than 200% of their salary.
    • Ifthe employees work from home according to the requirements of the enterprise, the enterprises shall ask them to take deferred holidays or pay no less than 200% of their salary according to the relevant regulations upon overtime work on rest days.
  • Guangdong Province and Suzhou, Jiangsu Province
    • From February 3rd to February 7th: Employees that cannot engage in regular labor or cannot work in the enterprises’ premises which accords with the normal production and operation standards, shall be paid according to the agreed standard in the labor contract. Employees engaged in regular labor during this period, shall not be paid in double.
    • From February 8th to February 9th: If enterprises arrange employees to work during this period, they shall pay no less than 200% of his/her salary.
  • Other areas: To be confirmed.

 

  1. If enterprises violate the relevant regulations upon the delayed resumption of work, what will be the legal consequences?
  • Criminal Liabilities (Partial)
  • [Crime of obstructing prevention and cure of contagious diseases]< Criminal Law of the People’s Republic of China> Article 330

In the case of violation of the Law on the Prevention and Treatment of Infectious Diseases, Whoever belongs to the following conditions and caused the spread or serious danger of the spread of Class A Infectious diseases, shall be sentenced to a fixed-term imprisonment of not more than three years or criminal detention; if the consequences are especially serious, he shall be sentenced to a fixed-term imprisonment of not less than three years but not more than seven years:

……

(4) refusal to execute the preventive and control measures proposed by the health and anti-epidemic agencies according to the Law on Prevention and Treatment of Infectious Diseases. Where a unit commits the crime mentioned in the preceding paragraph, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the offence shall be punished in accordance with the provisions of the preceding paragraph.

  • Administrative Liabilities(Partial):
  • <Law of the People’s Republic of China on Penalties for the Violation of Public Security Administration >Article 50

A person who commits any of the following acts shall be given a warning or be fined no more than CNY200; and if the circumstances are serious, he shall be detained for no less than five days but no more than 10 days, and may, in addition, be fined no more than CNY500:

  1. Refusing to carry out the decision or order issued in accordance with the law by the People’s Government in a state of emergency; ……
  • <Emergency Response Law of the People’s Republic of China> Article 64

Where an entity falls under any of the following circumstances, the local people’s government which discharges the functions and duties of unified leadership shall order it to cease production and business activities, seize temporarily or revoke its permit or business license, and impose a fine of between CNY50,000 and CNY200,000; where the circumstances involved constitute a violation of public security administration laws, the public security organ shall impose appropriate punishment in accordance with the law:

  1. Where the entity fails to take precautionary measures in accordance with the relevant provisions, thereby leading to the occurrence of any extremely serious emergency incident;
  2. Where the entity fails to timely remove any discovered hidden hazard which may give rise to an emergency incident, thereby leading to the occurrence of any extremely serious emergency incident;
  3. Where the entity fails to properly maintain and check emergency response equipment and facilities on a day-to-day basis, thereby leading to the occurrence of any extremely serious emergency incident or the expansion of damage caused by any emergency incident;and
  4. Where the entity fails to make timely arrangements for emergency response rescue activities after the occurrence of an emergency incident, thereby leading to any serious consequences.

Where it is provided in any other laws or administrative regulations that the relevant department of a People’s Government shall make a decision on the imposition of punishment in accordance with the law with respect to any of the circumstances specified in the preceding paragraph, such provision shall be complied with.

 

  • Civil Liability (Partial)

<Law of the People’s Republic of China on the Prevention and Treatment of Infectious Diseases> Article 77

Where a unit or individual violates the provisions of this Law, thus leading to the spread and prevalence of infectious diseases or causing harm or property losses to another person, it/he shall bear civil responsibility according to law.

 

  1. For pneumonia patients, suspected patients, those who have been in close contact with those infected by the new coronavirus during their isolation treatment or medical attention, as well as due to the government implementation of isolation measures or other emergency measures caused by the failure to provide normal labor, how should their wages be paid?

According to the relevant requirement of the Human Resources and Social Security Bureau, enterprises shall pay the aforesaid 4 types of employee’s salary during such period. We believe that the aforesaid employees shall be paid according to the standard of their normal work attendance.

However, specific practices may vary from place to place depending on the policies of the local human resources protection bureau. For example, in Beijing, enterprises should pay sick-leave salary according to the agreed labor contract or collective contract pay sick-leave salary to pneumonia patients of the new coronavirus infection during the treatment period, and to suspected patients, those of whom have been in close contact with infected patients during isolation or medical observation period, salary treatment shall be paid by the enterprises according to their normal working hours.

 

  1. After the culmination of the quarantine measures, for employees who need to rest from home, what will be the standard for enterprises to pay the salary during the rest period?

If the employee can provide the certificate of sick leave, it shall be treated as sick leave. If the sick leave certificate cannot be provided, the employee can apply for other holidays according to the company’s regulations, such as paid annual leave, company welfare leave, transfer leave, personal leave, etc.

 

  1. What will happen should enterprises miss the salary payment date due to adhering to the relevant regulations in relation to the extended holiday and the delayed resumption of work due to the epidemic?

Enterprises should try their best to coordinate and deal with the issue of wage payment and pay as scheduled in other forms if possible. If the payment cannot be made according to the original schedule, the employee shall be informed in a timely fashion, a relevant explanation shall be made, and a subsequent payment arrangement shall be made clear, which shall be reissued on the first day after the resumption of work. If the wage payment is delayed due to the impact of this epidemic, we believe that the employer has no subjective malice, so it does not constitute a case of “failure to pay the labor remuneration in full and on time” as stipulated in Article 38 of the Labor Contract Law. Therefore, the employee does not have the legal ground to terminate the labor contract and claim economic compensation accordingly.

 

  1. For enterprises suffering from suspension of operations due to the epidemic, how should they pay their employees’ salary?
  • If the period of salary payment is not more than one salary payment cycle (up to 30 days), wages shall be paid according to the normal working hours;
  • If it is over one salary payment cycle, if the employee works, the enterprises shall pay them no less than the local minimum wage. If the employee does not work, the enterprises shall pay living expenses no less than the certain percentage of local minimum wage. (Beijing: 70%; Shanghai:100%; Guangdong Province, Zhejiang Province and Jiangsu Province: 80%)until the enterprise resumes work, resumes production, or termination/rescission of the labor relationship.

 

  1. For the new coronavirus pneumonia infected patients, suspected patients, those who have been in close contact with those infected by the new coronavirus during their isolation treatment or medical attention, as well as due to the government implementation of isolation measures or other emergency measures caused by the failure to engage in normal labor, can enterprises terminate the labor contract?

Enterprises are not allowed to terminate the labor contract based on Article 40 of Labor Contract Law (Dismissal without fault) and Article 41 (Economic Dismissal) with those new coronavirus pneumonia infection patients, suspected patients, those who have been in close contact with the infection during their isolation treatment or medical observation period and due to other isolation measures introduced by the government or other emergency measures cannot work.

However, please be aware that the restriction to terminate the labor contract is limited to 2 conditions: Dismissal without fault and Economic Dismissal. If the employee violates Article 39 of Labor Contract Law and seriously breaks company rules, makes up or deliberately spreads terrorist information about the epidemic, refuses to accept isolation or treatment, which constitutes a crime of fabricating and intentionally spreading false and terrorist information or interferes with the prevention and control of infectious diseases and therefore causes criminal liability, enterprises can terminate the labor contract unilaterally according to laws and regulations.

 

  1. Can enterprises request employees to return to work in advance or extend working hours?

If enterprises need the employee to return to work in advance due to the needs of epidemic prevention, for example, if a prevention and control supplies production enterprise needs to produce overtime or needs to work overtime due to other emergency safeguard measures requested by the government, it shall belong to the extended working hours in compliance with the law. If the employee does not return to work as requested, the enterprise has the right to regard him/her as absent.

Enterprises which undertake the task of epidemic prevention and control, security and other relevant tasks can extend the working hours without the limitation of Article 41 of <Labor Law>, which states that overtime working hours cannot exceed 1 hour per day, 3 hours per day in special conditions and cannot exceed 36 hours per month. However, the enterprise shall provide relevant conditions to ensure the health of the employees.

 

  1. How to arrange those employees who cannot return to work due to the traffic control or self-isolation caused by epidemic?

For those who cannot return to work in a timely fashion due to the epidemic, enterprises can firstly arrange the employees to use their paid annual leave or arrange properly according to the local regulations. It is not suggested to punish employees who cannot return to work due to objective reasons.

 

  1. If the labor contract expires during the isolation period due to the epidemic, how to calculate the expiration date?

If the labor contract expires during the isolation treatment period, medical observation period or where the employee is isolated or other emergency measures taken by the government, the labor contract shall automatically extend to the end of such isolation treatment period, medical observation period, isolation period or emergency measures period.

 

  1. During the extended Spring Festival and the delayed resumption of work, can maternity leave, child-birth leave, paternity leave, marriage leave be extended?

General speaking, maternity leave is considered as a calendar day, inclusive of weekends and statutory holidays; childbirth leave, paternity leave and marriage leave shall be inclusive of weekends, and in case of statutory holidays, postponed. Therefore, in the absence of other legal provisions, during the Spring Festival extended leave, the delay of the resumption of work, maternity leave, childbirth leave, paternity leave and marriage leave cannot be extended.

 

  1. How shall enterprises deal with the personal information of their employees collected upon the request of government due to the need of the prevention and control of the epidemic?

At present, there have been some large-scale leakage of identity information related to Wuhan on the internet, therefore, enterprises should be vigilant. For similar information that has already been collected, enterprises should give full protection, reduce unnecessary disclosure and dissemination, and conduct encryption management; For further information collection and use, enterprises should follow the “necessary” or “minimum necessary principle” stipulated in the Cyber Security Law of the People’s Republic of China, and to the greatest extent avoid infringing employees’ personal information and then assume tort liability, administrative responsibility and even criminal responsibility.

 

  1. How is the time limit calculation for labor arbitration affected by an epidemic?
  • In order to protect the rights of workers and avoiding a scenario in which no relief can be obtained due to outbreak prevention and control. If the party concerned is unable to apply for labor dispute arbitration within the statutory limitation period for arbitration due to the influence of the epidemic, the limitation period for arbitration shall be suspended; The limitation period for arbitration shall continue to be counted from the date on which the causes for the suspension are eliminated;
  • If the party or attorney is unable to attend the hearing due to pneumonia caused by the new coronavirus infection, due to the isolation period or traffic control, he or she may apply for an extension of the hearing;
  • If the labor and personnel dispute arbitration institution is unable to hear the case within the prescribed time limit due to the influence of the epidemic, the time limit may be extended accordingly.

 

The aforesaid analysis is provided by D’Andrea & Partners only for reference, does not represent any official analysis and/or formal source of law, and does not present the legal opinion of D’Andrea & Partners for specific matters. If enquiries and communication for specific legal questions are required, you are welcome to contact us via info@dandreapartners.com.

 

Attached: Practical links

  • 《The Notice on the Extension of the Spring Festival Holiday in 2020 by General Office of the State Council 》

http://www.gov.cn/xinwen/2020-01/27/content_5472383.htm

  • <Notice on delay of resumption of work and school opening by Shanghai Municipal Peoples Government>

https://mp.weixin.qq.com/s/zXHWS5GdGuewZJlB6wRkow

  • 《Notice on how to deal with labor relations properly during the prevention and control period of the epidemic caused by novel coronavirus> Human Resources and Social Security Bureau Invention Dian[2020] No.5

http://www.mohrss.gov.cn/SYrlzyhshbzb/dongtaixinwen/buneiyaowen/202001/t20200127_357746.html

  • Shanghai<The official answers towards relevant question upon the delay of resumption of work by Municipal Human Resources and Social Security Bureau>

http://rsj.sh.gov.cn/201712333/xwfb/zxdt/01/202001/t20200128_1302972.shtml

  • <Notice on relevant matters upon how to deal with labor relations properly during the prevention and control period of the epidemic caused by novel coronavirus by Beijing Human Resources and Social Security Bureau> Jing Human Resources and Social Security Bureau [2020] No.11

http://rsj.beijing.gov.cn/xxgk/tzgg/202001/t20200123_1621260.html

  • <Notice on how to deal with labor relations properly during the prevention and control period of the epidemic caused by novel coronavirus by Human Resources and Social Security Bureau of Guangdong Province> Yue Human Resources and Social Security Bureau Ming Dian[2020] No.13

http://hrss.gd.gov.cn/zwgk/xxgkml/gzdt/content/post_2879157.html

  • <Notice on how to deal with labor relations properly during the prevention and control period of the epidemic caused by novel coronavirus by Human Resources and Social Security Bureau of Zhejiang Province> Zhe Human Resources and Social Security Bureau Ming Dian[2020] No.3

https://weibo.com/5131766197/IriyS0Xjc?type=comment#_rnd1580187913777

  • 《Emergency Response Law of the People’s Republic of China》

http://www.gov.cn/zhengce/2007-08/30/content_2602205.htm

  • 《Law of the People’s Republic of China on the Prevention and Treatment of Infectious Diseases》

http://www.gov.cn/banshi/2005-06/27/content_68756.htm