Employment issues relating to working from home during the period of epidemic prevention and control have become of concern to employers amid the current COVID-19 outbreak in provinces and cities in China. Meanwhile, employment issues relating to the resumption of operation and production have also come under the spotlight as the epidemic situation improves. This article provides an employer’s guide to working from home and resuming operations and production against a backdrop of epidemic prevention and control, in an effort to contribute to harmonious labour relations during this uniquely challenging period.
1. What if an employer is unable to onboard a new employee and sign the employment contract because the employee is quarantined?
According to the “Opinions on Issues concerning Properly Handling Labour Relations Involving the COVID-19 Outbreak (No. 17 [2020])” issued by the Ministry of Human Resources and Social Security and other six authorities, the employer may conclude an employment contract electronically after consultation with the employee. For example, the employer can send an electronic version of the required paperwork to the employee by email, and ask the employee to fill out, confirm, print, sign, and take photos of the documents. The employee can then email the photos back to the employer. When the employee is back to the office, it shall promptly re-sign the paperwork in wet signature and both parties keep one original
2. If an employer encounters difficulties in production and operation due to the epidemic, can the employer delay the payment of wages?
The employer may temporarily delay the payment of wages with the consent of the labour union or employee representatives. Generally, the delay period shall not exceed 30 days.
3. What if an employer fails to pay the social insurance premiums for employees on time and in accordance with the law due to difficulties in production and operation caused by the epidemic?
Enterprises in the five major industries of catering, retail, tourism, civil aviation, highways, waterways and railroad transportation can apply for deferred payment of the employer’s contribution to basic pension, unemployment insurance and work-related injury insurance. The deferment period for basic pension applicable to enterprise employees is from April to June 2022, and for unemployment insurance and work injury insurance it is from April 2022 to March 2023. A late payment fee is not charged during the deferment period. Further details can be found in the regulations of local human resources and social security departments.
If an enterprise that does not belong to the above five industries fails to pay social insurance for employees on time, it risks being ordered by the local human resources and social security department to pay the full amount or to make up the difference between what it has paid and the amount it should pay within a certain period of time. A late payment fee of 0.05% of the overdue amount for each overdue day will also be charged. If the enterprise still fails to pay by the deadline, it may be ordered to pay a fine of one to three times the amount in default.
Moreover, according to Article 38 of the Labour Contract Law, if an employee resigns on the grounds of non-payment of social insurance by the employer, the employer may need to pay compensation to the employee. There is an exception: according to the “Solutions to Issues concerning Properly Handling Labour Disputes Involving the COVID-19 Outbreak” jointly formulated by the Shanghai High People’s Court and the Shanghai Municipal Human Resources and Social Security Bureau, if an employer (particularly a small or medium-sized enterprise), enters into a dispute about the termination of employment contracts by employees because of the employer’s failure to pay social insurance in accordance with the law due to the suspension of operation or difficulties of operation resulting from the epidemic or epidemic control measures, the employer shall focus on resolving the dispute through reconciliation and mediation, facilitate the resumption of employment relations, and continue to fulfil the employment contract. If the employee insists on the termination of the employment contract in these circumstances and seeks compensation on the grounds of Article 38 of the Labour Contract Law, such claims shall not generally be upheld.
4. Is an employer obliged to provide office equipment such as computers and to cover employees’ phone and broadband costs when they work from home?
In principle, employers are obliged to provide employees with necessary office equipment when they work from home and to reimburse work-related phone charges, broadband costs, and other expenses according to its internal rules.
5. What if an employee is unable to work from home during the period of COVID-19 prevention and control?
If the employee cannot work from home, the employer shall first arrange with the employee to use paid leaves such as annual leave and any welfare leave set up by the employer. The employee shall be notified of such arrangements in advance and be paid accordingly.
If the employee cannot return to work after the leaves are used up, the employer shall negotiate with the employee by reference to relevant provisions issued by the government on the payment of wages during the period of business suspension. In the first payment cycle, the employer shall pay the employee his or her full normal pay. In the second payment cycle, the payment shall be determined by mutual agreement and shall be no less than the relevant city’s minimum subsistence.
For employees to whom the comprehensive work hour system applies, employers may first arrange with them to take their current year’s rest days in advance and arrange for them to make up for the work after the resumption of operation and production. Any plan for resting first and making up for the work later must go through the employer’s democratic procedure and publication procedure before implementation. In the plan, employees must be given at least one day of rest per week when they make up for the work, and the period of such arrangements shall strictly comply with the calculation period of the comprehensive work hour system permitted by the applicable human resources and social security departments.
6. When employees work from home, can employers manage attendance through the use of monitoring software?
According to the Personal Information Protection Law, images and locations of employees are sensitive personal information. Before an employer collects images and locations of employees through monitoring software, it shall first explicitly notify the employees of the purpose and methods of collecting and processing, the categories of processed personal information, the retention period, and methods and procedures for employees to exercise their rights provided in law. The employer must also obtain the separate consent of employees in advance. In addition, employers must process the personal information with the minimum influence on individual rights and interests and limit the collection of information to the minimum scope necessary for carrying out attendance monitoring.
It is recommended that employers formulate home office rules in advance based on the characteristics of remote working, clarifying working hours, attendance tracking methods, reporting requirements, response requirements, task management and other specific matters. The management system should only come into effect after completion of the democratic procedure and the publication procedure in accordance with the law.
7. Must an employer pay overtime when it arranges for employees to stay on duty in the workplace during COVID-19 prevention and control?
If the employee’s job is to ensure the safety and fire safety of the employer, epidemic prevention and control, etc., the employer must pay overtime according to the law if the employer arranges for the employee to stay in the workplace for the such work during the period of epidemic prevention and control. If the employer arranges for an employee to perform a duty unrelated to his or her job for the needs of safety, fire safety, holidays, etc., the work shall not be considered overtime. The employee may request that the employer pay duty allowance or a stipend according to their employment agreement or the employer’s regulations (if any).
8. How can an employer protect trade secrets and intellectual property rights when employees work from home?
It is recommended that employers provide employees with office equipment such as computers and cell phones where possible, and require employees to use only employer-provided equipment when working and transferring work-related files and information. Employers should obtain the employees’ consent to monitoring their use of office equipment and agreement that employees shall not use work equipment for private use or storing private information. In addition, it is recommended that employers formulate regulations to protect trade secrets and intellectual property rights when employees work from home, emphasizing the employees’ duty of confidentiality.
9. If an employee gets infected with COVID-19 when participating in community volunteer service during the period of epidemic prevention and control, does this constitute a work-related injury?
Infection with COVID-19 due to participation in community volunteer service is not an infection during working hours, in the workplace, or for work-related reasons. Therefore, it is not a work-related injury and the employer has no liability for such injury.
10. Can employers terminate employment contracts during the period of COVID-19 prevention and control?
During the COVID-19 prevention and control period, the employer may negotiate with the employee to terminate the employment contract or do so in accordance with Article 39 of the Labour Contract Law. For employees who are COVID-19 patients, suspected patients, and close contacts experiencing an isolation treatment or medical observation, and employees who are unable to work as normal due to quarantine or other emergency measures imposed by the government, the employer cannot terminate their employment contracts on the grounds of Articles 40 and 41 of the Labour Contract Law, i.e. non-fault termination grounds.
11. Can employers end employment contracts which expire during the period of COVID-19 prevention and control?
During the period of epidemic prevention and control, employees who are COVID-19 patients, suspected patients, or close contacts experiencing an isolation treatment or medical observation, and employees who are unable to work as normal due to quarantine or other emergency measures imposed by the government, the expiration date of their employment contracts must be extended until the end of the employee’s medical treatment, medical observation, or isolation, or until the emergency measures are lifted.
12. Can employers return dispatched employees to labour dispatchers if they cannot work as normal due to the epidemic?
During the period of epidemic prevention and control, employees who are COVID-19 patients, suspected patients, or close contacts experiencing quarantine, treatment, or medical observation, and employees who are unable to work as normal due to quarantine or other emergency measures imposed by the government, shall not be returned to the labour dispatcher for that reason.
13. Can employers require employees to take COVID-19 tests, to get vaccinated, or to provide proof of COVID-19 tests and vaccination when they resume work?
Employers may require employees to bring COVID-19 test results or vaccination certificates when they return to work for the purpose of epidemic prevention and control, if it is required by laws, regulations, or normative documents issued by the government, for example, those who are exposed to a high risk of infection, such as those engaged in cold-chain import, port quarantine, ship pilotage, aviation crew, public transportation, etc. Otherwise, the employer has no right to compel employees to provide COVID-19 test results or vaccination certificates, which are sensitive information of employees and can only be collected with their separate consent.
14. What if an employee refuses to resume work after his or her employer resumes operation and production?
If the employer meets the requirements for resumption of operation and production (e.g., the employer has obtained a work resumption certificate, provided employees with appropriate epidemic prevention materials, and taken the necessary epidemic prevention measures in accordance with government regulations, etc.) and if the employee is able to resume work but refuses to do so for private reasons (i.e. the employee is not a COVID-19 patient, a suspected patient, or a close contact experiencing isolation treatment or medical observation, and is not prevented from work by isolation measures or other emergency measures imposed by the government), the employee’s behaviour can be handled as a violation of discipline by reference to the rules and regulations of the employer and an appropriate sanction may be imposed.
For further information, please conctact:
Ying Wang, Partner, Bird & Bird
ying.wang@twobirds.com
