Remote working has been widely adopted during the pandemic and, in fact, was widespread in certain industries prior to COVID-19. For industries that do not rely on physical space for production and operation, remote working can not only reduce expenditure on expensive office space, but also can lead to more flexible and agile working practices which in turn may help attract and retain key talent. As a new mode of employment, remote working has given rise to new management requirements for employers in relation to attendance, performance assessment, work communication, salary calculation, work-related injury, to name a few. However, the current PRC law is less developed on this topic.
To help employers to navigate this topic in PRC, we are launching a series of articles on home working, which will analyse the legal issues related to remote working based on existing regulations and judicial practice. This, the first article in this series, will focus on who has the right to make the decision on whether an employee works remotely or not.
1. For Purposes of COVID-19 Prevention and Control
1.1 Advisory Provisions
At the beginning of the COVID-19 pandemic, the State Council, the Ministry of Human Resources and Social Security and other authorities issued a series of provisions to encourage employers affected by the pandemic to arrange their employees with regard to remote working. For example, the Opinions on Stabilizing Labour Relations and Supporting Enterprises’ Resumption of Work and Production during the Prevention and Control of Novel Coronavirus Outbreak (No. 8 of the Ministry of Human Resources and Social Security of the People’s Republic of China 2020) stipulates: “For those employees who are unable to work in the office on schedule or those enterprises that cannot continue production due to the pandemic, enterprises should be instructed to take the initiative to communicate with their employees. If conditions permit, enterprises can arrange for their employees to work from home through telephone, internet and other flexible working methods to complete their tasks.” However, the regulations on remote working in relevant provisions are all advisory provisions, and there is no mandatory requirement for remote working. Under such advisory provisions, the employer has the right to decide whether to arrange for employees to work from home, and the consent of the employee is not required to be obtained if the employer does not unilaterally change the employee’s salary and work scope.
Since these provisions are not mandatory, the employer has sole discretion over the duration of remote working. In current judicial practice, if the employer decides to stop remote working and arrange for an employee to return to the office, and the employee refuses to return to work without justified reasons, the employer may impose disciplinary action against the employee according to the employer’s internal rules.
1.2 Mandatory Requirements
Recently due to repeated waves of the pandemic, many cities have issued announcements forcing enterprises and employees in key areas to work at home. For example, in the 324th press conference on COVID-19 prevention and control in Beijing, the local government announced that starting from 5 May 2022, employees who live or work in certain areas should work from home. Accordingly, the relevant office buildings were locked down at the request of the government.
Employers should arrange for employees to work from home if local governments require them to do so for pandemic prevention and control. If the employer refuses to arrange for the employees to work from home in such circumstances, it may not only face legal consequences for violating pandemic prevention and control measures, but may also face labour disputes over termination and salary payments where pay is withheld as a consequence of an employee’s refusal to come to the office.
The employer may require the employee to return to work when or after the local government lifts the mandatory home working measures. If the employee refuses to return to work without justifiable reasons, the employer may take disciplinary action against the employee according to the employer’s internal rules.
2. Based on Internal Rules
Many companies, particularly multinational companies, include working from home as an employee benefit or optional work mode in their internal rules. In such internal rules, employers often set out the conditions and process of application and approval for home working, and may specify the maximum number of days per year an employee can work remotely. Where a company has set up its internal rules on remote working following the statutory democratic process (i.e. to discuss with the workers congress or all employees and equally consult with the trade union or employee representatives), an employee can apply for home working according to such rules. Meanwhile, the employer has the right to decide whether to approve the employee’s application according to the rules, and to determine the number of days the employee can work from home.
In addition, in order to save costs, some companies provide remote working as a general working mode in their internal rules. If the employer has undergone the statutory democratic and publication process when formulating the relevant rules, provided the necessary working tools for employees, and provided reasonable compensation for the additional cost incurred by employees, the employer has the right to arrange for employees to work from home in accordance with such internal rules, and employees should follow the instruction of the employer in this regard. In practice however, if the specific office place is designated in the labour contract, but the current effective internal rules of the company stipulate that the employee works at home, the employer is still required to obtain the employee’s consent when arranging for the employee to work at home.
3. Based on the Agreement
In certain scenarios, employers may arrange for an employee to work from home upon mutual agreement. Common scenarios in practice include the following:
In order to prevent the potential impact of pollution arising from office redecoration on the employee’s health, the employer may agree with employees to work from home during the redecoration process or for a certain period after the redecoration. In such cases, it is reasonable for the employee to require remote working. However, the question of whether he/she can work from home still depends on the consent of the company, unless the employee is able to prove that the company’s office is polluted as a result of the redecoration activities, or that working in the office is harmful to, or may endanger, his/her health.
In order to reduce the restrictions on the working hours of female employees in their pregnancy, maternity and nursing periods (the “3 Periods”), employers may agree with them that they can work from home for a certain period of time. The Law on the Protection of Women’s Rights and Interests and Special Provisions on Labour Protection for Female Employees provide some protection of special rights and interests of female employees (especially female employees in their 3 Periods) in terms of working hours and workplace, and the State Council and the National Health Commission also encourage employers to provide home working as an optional working mode for female employees who are in their nursing period or taking care of a baby in relevant policy documents. However, since it is not compulsory for employers to arrange for female employees to work from home in the 3 Periods, the consent of the employer is still required.
It should be noted that where the employer and the employee agree that the employee may work from home, the employee must return to the office after the agreed home working period expires, unless the employer and the employee agree to extend such period. If the employee refuses to return to the office without justifiable reasons, the employer may take disciplinary action against the employee according to the employer’s internal rules.
4. Key Takeaways
In the context of COVID-19 and the digital economy, remote working has become a significant part of employment in PRC, as it has elsewhere. According to current laws, regulations and judicial practice, employers usually have the right to require or consent to employees working from home, but employees do not have the right to unilaterally decide to work from home, except in emergencies where the government requires employers to do so based on pandemic prevention and control. In practice, however, there are still many labour disputes arising from decisions relating to remote working. In view of this, we suggest that employers pay attention to the following key points when arranging for employees to work from home:
- If the employer arranges home working due to the pandemic situation, the population of affected employees and the starting and ending time should be clearly defined. If the end of the home working period cannot be determined for the time being, the employer should pay close attention to the development of the pandemic situation and relevant announcements and notices issued by the government, adjust the requirements of home working promptly, and inform the employees of the relevant requirements in a timely manner.
- If an employee applies for home working based on internal rules, the employer should decide whether to approve or reject the application in time.
- If the company arranges for employees to work from home based on internal rules, the company should ensure that the rules have undergone the democratic procedures and publication procedures, specify the time limit of home working and conditions and requirements for returning to the office, and give reasonable compensation to employees for additional expenses incurred during home working.
- If the employer arranges for an employee to work from home upon mutual agreement, the period of home working and the conditions and requirements for returning to the office should be clarified in the agreement.
- If an employee fails to return to the office in time after the remote working period expires, the employer should ask the employee to explain the reason. In the event that the employee refuses to return without justified reasons, the employer should issue a notice requiring the employee to return to the office, and set out the potential consequences of not returning.
For further information, please contact:
Ying Wang, Partner, Bird & Bird
ying.wang@twobirds.com
