Urgent labor law issues relating to novel coronavirus outbreak

 

 

According to Article 1 of Notice of the General Office of the state Council on Extending the Spring Festival Holiday of 2020, the Spring Festival holiday will be extended to Feb 2 and the resumption of work will begin on Feb 3. If the ordinary rest days are excluded, there are actually two more extended days for this Spring Festival holiday, which are Jan 31 and Feb 1.

 

Yes, this policy is compulsory. The extended two-day Spring Festival holiday (Jan 31 and Feb 1) shall be deemed as additional special vacation or rest days for all citizens for the purpose of containing the spread of the epidemic.

 

If the company arranges the employees to work during the above-mentioned extended Spring Festival holiday, it shall give the employees supplementary rest days. If no rest days are given afterwards, the company shall pay a compensation equal to twice as much as the ordinary salary.

 

No. The paid annual leave is employees’ statutory right. They are entitled to both the annual leave and this extended holiday. 

 

Under the Comprehensive Working Hours System, there are 250 working days per annuum. Because of this extended holiday, the annual working days have been reduced to 248 days.  

 

The companies in Jiangsu Province are not obliged to pay for the overtime work during the extended Spring Festival holiday. 

 

 

 

Take Wuxi City as an example. According to the notice issued by Wuxi City Government, the re-open time for the enterprises in Wuxi shall not be earlier than 24:00, Feb 8, 2020. However, the re-open time announced next day by Jiangsu Provincial Government, shall not be earlier than 24:00, Feb 9, 2020. Jiangsu Provincial Government’s order shall prevail, which means enterprises shall not re-open the operation until Feb 10, 2020. 

 

Yes. Enterprises must comply with the restriction order.

The re-open restriction period is from Feb 3 to Feb 9, among which Feb 3 to Feb 7 used to be normal working days.

According to the relevant regulations and notices issued by the labor bureau of Wuxi City, the employer must pay its employees ordinary salary during such period even if the employees do not need to go to work. Although it is not clear whether the annual leave can be used to offset such restriction period, we advise enterprises not to do it. 

If the enterprise is eligible for the re-opening of the business during the restriction period and if its application is approved by the competent authorities, the enterprise can arrange its employees to go to work. In that case, the enterprise shall pay the ordinary salary in a timely manner and may provide care and encouragement in an appropriate manner to the employee. The enterprise shall comply with relevant laws and regulations if such period involves a rest day.

 

No. Having said that, we advise that the employer apply to the labor bureau for the Comprehensive Working Hours System which may give the employer more room to deal with employees’ overtime work and leave.

 

Yes. The employer can arrange its employees to work at home, which does not violate the government’s order. The employees are entitled to their ordinary salary, but no extra compensation.

If the employee does not agree to work at home, we advise the employer not to take any disciplinary action against the employee’s non-compliance, given the current situation of the epidemic control.

 

Not necessary. However, if they want to increase the production scale, they’d better consult the local government. 

 

The restriction policies issued by the provincial and regional governments apply to the enterprises. Government agencies, not-for-profit units are not subject to the re-open restriction policy.  

 

We need to differentiate the holiday and the restriction period. This Spring Festival holiday has been extended to Feb 2, 2020. If the last day of the litigation appeal deadline and evidence submission deadline falls within the holiday, such deadline shall be postponed accordingly. However, the re-open restriction period issued by various governments is not statutory holiday or rest days, but the emergency measures containing the spread of the epidemic. In theory, the restriction policy does not necessarily affect the relevant litigation periods.  

 

Courts at all levels in Jiangsu Province will resume the work on Feb 3. In theory, the court may conduct litigation trials during the re-open restriction period which ends on Feb 9. The litigation or arbitration parties must contact the courts and arbitration tribunals for further clarification.

 

 

 

If an employee stops work and is under medical care due to the infection of the novel coronavirus pneumonia, he or she is entitled to medical treatment period according to the law. During the medical treatment period, the company may not terminate the labor contract and shall pay the salary according to the labor contract. The sick pay shall be not less than 80% of the local minimum salary.

 

During the quarantine period or medical observation period, if an employee cannot fulfil his labor obligations because of the government’s quarantine measures or other emergency measures, the employer may not terminate the labor contract and shall pay the ordinary salary as he has fulfilled his labor obligations.

 

If an employee is in the medical treatment period, he is entitled to sick pay. If an employee is in the quarantine period, he is entitled to the full ordinary salary. If an employee is in both medical treatment period and quarantine period, we advise that the employer pay full ordinary salary. 

 

The term of labor contract shall be extended until the expiration of medical treatment period, quarantine period or medical observation period. The employer may take following steps: send the employee an extension notice, pay ordinary salary, ask the employee to provide the supporting documents relating to the government measures. The employer may collect the support documents by itself.

 

 

 

If the period of production suspension is in a pay cycle, the salary shall be paid as employees have fulfilled their labor obligations. If the period of production suspension exceeds a pay cycle, the company shall pay employees the cost of living which is not less than 80% of local minimum salary.

 

The employer may arrange the employee to take annual leave. If the employee’s absence from work continues for a long time, the employer may negotiate with the employees about the future arrangement: personal leave, suspension of labor contract, or temporary layoff. During the period of temporary layoff, the employer shall pay the employee the cost of living which is not less than 80% of local minimum salary.

 

When the employer pays sick pay or living expenses to the employee according to 80% of the local minimum salary, the employer must pay the personal share of the social insurance fee and the housing fund which would otherwise be paid by the employee himself. 

 

The employer must pay the ordinary salary.

 

i.Companies can negotiate with their employees to make following arrangements to maintain stable labor force: salary adjustment, work shift and rest days rearrangement, reduction of working hours. Companies are not encouraged to take redundancy proceedings. Companies may also apply to local governments for special subsidies relating to stabilizing labor force. 

ii.Companies affected by the epidemic can apply to the local labor bureau for implementing Comprehensive Working Hours System.

 

 

If a party is unable to submit the labor dispute to the labor tribunal within statutory limitation period due to the negative effect of the epidemic, the arbitration limitation period shall be suspended. The period of limitation of arbitration shall be calculated continuously from the day when the cause of suspension of limitation is eliminated. (For the limitation issue in a litigation case, we believe that the epidemic could be treated as the event of force majeure.) If the labor tribunal is unable to hear the case within the time limit due to the impact of the epidemic, the time limit may be extended accordingly.

 

 

1.Medical care staff members and related personnel participate in the prevention and treatment of novel coronavirus pneumonia and are infected with or die due to infection of novel coronavirus pneumonia. This event shall be deemed as workplace injury and they shall be entitled to workplace injury insurance benefits according to relevant laws and regulations.

 

2.According to the relevant regulations of Jiangsu Province, a green fast track for the identification of workplace injury will be opened. After receiving the application for workplace injury identification, the work-injury insurance administrative department shall complete the identification within 3 days after the acceptance of the application with clear facts and complete information. A fast track for payment of workplace injury benefits will also be opened.

 

3.If an employee is sent by the employer to the epidemic affected areas and therefore is infected with novel coronavirus pneumonia, or in worst case, even dies from such infection, the law is not clear on whether it can be regarded as workplace injury. However, having considered the key facts of workplace injury in courts’ precedent, we believe that it should also be considered as workplace injury.

 

 

1.The applicable labor policies shall refer to where the labor contact is performed.

 

2.The companies shall strictly abide by the local operation re-open restriction policies. If the company re-opens operation without proper administrative consent and if employees are infected, the company and its legal representative may face legal liabilities, even criminal liabilities.

 

3.If the local government does not have special rules, the rules of the General Office of the State Council and the Ministry of Human Resources and Social Security shall apply.

 

 

The company shall communicate with employees to understand their travel information during the Spring Festival holiday. If the company finds that employees travelled Hubei Province within 14 days before his return or have symptoms such as cough and fever, the company shall notify the above employees not to return to work. Such employees cannot return to work until they have passed medical check and been approved by the company. Companies must strictly fulfill their obligations of confidentiality in relation to employees’ personal information and privacy.

 

 

This article is the author ’s interpretation of relevant policy documents in accordance with national and local regulations. It is not a formal legal opinion or advice. If there is any inconsistence with the opinions of relevant government departments, please refer to such government opinions. If relevant government agencies issue new rules and regulations, the new rules and regulations shall prevail.