Frequently asked questions of the companies in front of the emergence of the new Coronavirus (COV) (2nd edition)

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During the Chinese New Year holiday, the General Office of the State Council, National Health Commission (NHC), Ministry of Human Resources and Social Security, as well as local people’s governments at various levels released a series of documents successively in order to prevent and control the pneumonia cause by a novel coronavirus (“n-CoV”), among which the issues, such as the extension of the Chinese New Year holiday, the delay of work resumption after the holiday, and the salary package for employees during the holiday extension and delay of work resumption, attracted lots of attention. We, therefore, continue to summarize n-CoV FAQs for enterprises (2nd edition) as follows:

13. Continued from the last edition, we further summarize the arrangements of delaying work resumption issued by other main provinces and cities as follows:

Province / City Time of Work Resumption Enterprises that Can / Shall Resume Work Earlier
Beijing Except for certain enterprises that should resume work, other enterprises, before 24:00 on February 9, 2020, shall arrange their employees to work from home in a flexible manner to complete their work via phone or internet; those enterprises that cannot arrange their employees to work from home shall adopt a flexible way of calculating work time in arranging their employees for work, and shall not cause personnel gathering and clustering. Enterprises in industries necessary for epidemic prevention and control (such as manufacturers, transporters and sellers of drugs, protective products and medical devices), for ensuring city’s operation (such as water suppliers, electricity suppliers, natural gas and oil suppliers, communications providers, municipalities, and public transportation providers in the city), for people’s livelihood (such as supermarkets, food manufacturers and suppliers, express delivery services providers, and property management providers), for construction of key projects, as well as in other industries concerning national economy and people’s livelihood. These enterprises shall arrange their employees to work normally.
Tianjin Not resume work temporarily. Specific time of work resumption will be notified in advance. Enterprises in industries necessary for ensuring operations of cities and rural areas (such as water suppliers, electricity suppliers, natural gas and oil suppliers, communications providers, public transportation providers, and municipal environmental sanitation operators), for epidemic prevention and control (such as manufacturers, transporters and sellers of medical devices, drugs and protective products), for people’s livelihood (such as supermarkets, food manufacturers and suppliers, and express delivery services providers), as well as in other industries concerning national economy and people’s livelihood.
Hebei Province Enterprises in the Hebei Province shall resume work no earlier than 24:00 on February 9, 2020. Enterprises in industries necessary for ensuring public services (such as water suppliers, natural gas suppliers, electricity suppliers, heat suppliers, communications providers, public transportation providers, and municipal environmental sanitation operators), for epidemic prevention and control (such as manufacturers, transporters and sellers of medical devices, drugs, protective products, anddisinfection-purpose products), for people’s livelihood (such as supermarkets, farm products markets, food manufacturers, and express delivery services providers), as well as in other industries concerning national economy and people’s livelihood.
Henan Province Date of work resumption is postponed till February 9, 2020. Manufacturers of epidemic prevention products, suppliers of articles for daily use, and express delivery services providers.
Shandong Province Enterprises in the Province shall resume work no earlier than 24:00 on February 9, 2020. Enterprises in industries necessary for ensuring public services (such as water suppliers, natural gas suppliers, electricity suppliers, and communications providers), for epidemic prevention and control (such as manufacturers and sellers of medical devices, drugs and protective products), for people’s livelihood (such as supermarkets, and food manufacturers and suppliers), as well as in other industries concerning national economy and people’s livelihood.
Hunan Province Enterprises in the Province shall resume work no earlier than 24:00 on February 9, 2020. Enterprises in industries necessary for ensuring the operation of cities and rural areas, such as water suppliers, electricity suppliers, natural gas and oil suppliers, communications providers, public transportation providers, environmental protection operators, and municipal environmental sanitation operators; for epidemic prevention and control, such as manufacturers, transporters and sellers of medical devices, drugs and protective products; for people’s livelihood, such as supermarkets, food manufacturers, and express delivery services providers; as well as in other industries concerning national economy and people’s livelihood that are badly in need of work resumption.
Guizhou Province Enterprises in the Province shall resume work and production no earlier than 24:00 on February 9, 2020. Enterprises in industries necessary for ensuring public services (such as water suppliers, natural gas suppliers, electricity suppliers, and communications providers), for epidemic prevention and control (such as manufacturers and sellers of medical devices, drugs and protective products), for people’s livelihood (such as supermarkets, and food manufacturers and suppliers), as well as in other industries concerning national economy and people’s livelihood.
Yunnan Province Enterprises and construction projects in the Province shall resume work and production no earlier than 24:00 on February 9, 2020. Enterprises in industries necessary for ensuring public services (such as water suppliers, electricity suppliers, natural gas and oil suppliers, communications providers, public transportation providers, environmental protection operators, and municipal environmental sanitation operators), for epidemic prevention and control (such as manufacturers, transporters and sellers of medical devices, drugs and protective products), for people’s livelihood (such as supermarkets, food manufacturers and suppliers, and express delivery services providers), as well as in other industries concerning national economy and people’s livelihood.
Liaoning Province Enterprises in the Province shall resume work no earlier than 24:00 on February 9, 2020.  Depending on the course and change of epidemic, if the earliest work resumption date is changed, it will be notified. Enterprises in industries necessary for ensuring city’s operation (such as water suppliers, natural gas suppliers, electricity suppliers, and communications providers), for epidemic prevention and control (such as manufacturers and sellers of medical devices, drugs and protective products), for people’s livelihood (such as supermarkets, and food manufacturers and suppliers), as well as in other industries concerning national economy and people’s livelihood.
Heilongjiang Province Enterprises and construction projects in the Province shall resume work and business no earlier than 24:00 on February 9, 2020. Enterprises in industries necessary for ensuring city’s operation (such as water suppliers, electricity suppliers, natural gas suppliers, heat suppliers, communications providers, public transportation providers, environmental protection operators, and municipal environmental sanitation operators), for epidemic prevention and control (such as manufacturers, transporters, and sellers of medical devices, drugs protective products, and disinfection-purpose products), for people’s livelihood (such as food manufacturers, express delivery services providers, and supermarkets), as well as in other industries concerning national economy and people’s livelihood.

14. When an employee is forced to be quarantined, if his or her employment contract expires during his or her quarantine period, will the employer be able to terminate such employment contract?

In accordance with the Notice of Properly Handling Employment Relationship during Prevention and Control of Novel Coronavirus Infected Pneumoniareleased by the Ministry of Human Resources and Social Security, if an employee’s employment contract expires when he or she is forced to be quarantined for medical treatment or medical observation and when the government implements isolation measures or other emergency measures, such employment contract shall be respectively extended to the expiration date of the employee’s medical treatment period, the medical observation period, the isolation period, or the end of the emergency measures taken by the government.  It is to say that the enterprise cannot terminate employment contracts with its employees on the grounds that such employment contracts expire within the aforementioned period.  Please further note that such extension shall be taken as the automatic extension with legal cause stipulated by law. Therefore, enterprises are not required to sign or change the employment contracts with its employees.

15. When an employee is forced to be quarantined, will his or her employer unilaterally terminate the employment contract with the employee?

It depends on the unilateral termination reason of the employer.  In accordance with the Notice of Properly Handling Employment Relationship during Prevention and Control of Novel Coronavirus Infected Pneumoniareleased by the Ministry of Human Resources and Social Security, enterprises shall not unilaterally terminate employment contracts on grounds of layoffs for economic reasons and no-fault dismissal (i.e. expiration of medical treatment period for employees, employees’ incapability of performing duties, or major changes in objective circumstances).  We tend to think that if an employee’s act falls under any of the circumstances as stipulated in Article 39 of PRC Labor Contract Law which is attributed to the reason of the employee for the termination, or he or she reaches an agreement with the employer, the employment contract between the parties could be terminated.

16. Once the delay of work resumption ends, will those employees who fail to return to work in time because of self-quarantine (not forced quarantine) be deemed absent from work?

We would not advise on such recognition. Under such special circumstance, an enterprise should review every employee’s situation prodently and actively understand the epidemic situation where its employees reside.  According the recommendation by experts from the Chinese Center for Disease Control and Prevention, self-quarantine at home is required for 14 days when anyone returns to work and residence from areas with high epidemic rate, such as Wuhan City.  In other areas where there is no obvious virus spreading among communities, it is fine for individuals to do self-protections, such as wearing masks at work, taking body temperature frequently, as well as seeing a doctor in time in case of any discomfort.  Therefore, it is necessary for employees returning from areas with high epidemic rate to take self-quarantine measures, and enterprises should support them.

17. Once the delay of work resumption ends, if an employee fails to return to work in time because of self-quarantine (not forced quarantine), what will his or her employer do?

We advise enterprises to ask their employees to work from home, avoiding personnel gathering. If an enterprise does not have the conditions to make their employees work from home, we would advise such enterprise to discuss with its employees to use the employees’ paid annual leaves or personal leaves for the days at home.  Below are some open suggestions from labor departments of some provinces and cities for reference:

Suzhou City: For employees who fail to return to work in time after the end of emergency measures such as delay of work resumption, the employers may give priority to arranging employees to take paid annual leaves after reaching agreements with these employees.

Wuxi City: For employees who fail to return to Wuxi for work in time due to the epidemic, the employers may give priority to arranging employees to take annual leaves.

Guangdong Province:  For employees who fail to return to Guangdong for work in time due to the epidemic, the employers may give priority to arranging employees to take paid annual leaves after reaching agreements with these employees.

Qingdao City: For employees who fail to return to work in time due to the epidemic, the employers may give priority to arranging employees to take annual leaves.  If an employee does not return to work for a long time, his or her salary during this period shall be negotiated between the employer and the employee.

Xiamen City: If an employee is unable to return to work in time due to quarantine, traffic restrictions and other prevention and control measures, he or she should explain to his or her employer in a timely manner and go through the leave formalities in accordance with the rules and regulations of the enterprise. The enterprises shall not deal with employees on the grounds of absence from work. Instead, the enterprises may require employees to provide a certificate of diagnosis and medical treatment provided by hospital, a written explanation provided by community or village committee, a notice of regional traffic restrictions, and other materials to support.  If an employee returns from a key epidemic area to his or her work place and stays at home for a long time for observation or quarantine, his or her employer may give priority to arranging paid annual leave for the employee or discussing with the employee to go through personal leave procedures.

18. If an enterprise faces difficulties in business operation due to the epidemic, could the enterprise temporarily stop the operation or production?

Yes. Such enterprise should provide relevant evidence of operational difficulties with an estimate of timeline to resume operation. Under current special circumstances, it is not suggested to take temporary shutdown as a means of layoff or employment termination through negotiation.  It is because that such act is contrary to the principle to stabilize the employment relationship. We hereby summarize the measures of some provinces and cities during shutdown as follows:

 

Province / City Treatment during Temporary Shutdown
Beijing Within one salary payment cycle, an employer shall pay its employees as if the employees provide normal labor.  For the period beyond one salary payment cycle, salary may be paid according to the newly agreed standards of both employer and employees based on the labor provided by employees, but shall not be lower than the minimum wage standard of the city.  If an employer does not arrange its employees to work, it shall pay basic living expenses for its employees no less than 70% of the minimum wage standard in the city.
Shanghai With one salary payment cycle, an employer shall pay its employees as agreed.  For the period beyond one salary payment cycle, the employer may, based on the labor provided by employees, pay its employees according to their new agreements, but the payment shall not be lower than the minimum wage standard of the city.
Jiangsu Province Within one salary payment cycle, it shall be deemed that employees provide normal labor and get paid normally. For the period beyond one salary payment cycle, the employer may, based on the labor provided by employees, pay its employees according to their new agreements.  If an employer does not arrange employees to work, it shall pay living expenses for its employees no less than 80% of the local minimum wage standard.
Zhejiang Province Within one salary payment cycle, an employer shall pay its employees as agreed in their employment contracts, and as required by the State and Province.  For the period beyond one salary payment cycle, if an employee provides labor normally, his or her employer shall pay him or her no less than the minimum wage standard determined by local people’s government.  If an employee does not provide labor normally, it shall pay its employees no less than 80% of the local minimum wage standard determined by local people’s government.
Guangdong Province  Within one salary payment cycle (30 days as longest), an employer shall pay its employees based on normal working time. For the period beyond one salary payment cycle, the employer may, based on the labor provided by employees, pay its employees according to the newly agreed standards of both employer and employees.  If an employer does not arrange employees to work, it shall pay living expenses for its employees no less than 80% of the local minimum wage standard till the resumption of work or production, or the termination of labor relations.
Shenzhen If an enterprise shuts down for less than one month, it shall pay it employees with 80% of their salaries at normal work time.  If an enterprise shuts down for more than one month, it shall pay it employees with no less than 80% of their salaries.

19. If an employee is infected with n-CoV because of work, will his or her infection be determined as work-related injury?

For general enterprises (not in connection with n-CoVprevention or treatment), if any of their employees is infected with pneumonia at work, generally his or her infection will not be determined as work-related injury.  If such infection is really due to the fault of the employer (for example, other employees are infected because the employer does not isolate the employee who returns from the epidemic area), the employee shall require the employer to compensate for medical expenses.

In accordance with the Notice on Protection of Medical Care and Relevant Staff Infected with Novel Coronavirus Infected Pneumonia Due to Performance of Dutiesissued by the Ministry of Human Resources and Social Security and other ministries and commissions on January 23, 2020, during the prevention and treatment of novel coronavirus infected pneumonia, medical care and relevant staff who are infected with novel coronavirus or die from infection with n-CoV in performance of duties shall be deemed to suffer work-related injuries and shall be entitled to be covered by work-related injury insurance according to law.

20. If an enterprise has branches and subsidiaries at different places, will it be required to take uniformed measures to tackle situations in different places?

As the epidemic prevention and control is subject to local administration, it is advised to act in accordance with the policy of the place where an employee’s employment contract is performed.  However, if an enterprise wants to adopt a uniformed standard, it is advisable to take a most favorable approach for the employees so as to avoid potential labor disputes.