30 April 2020
Introduction
Overview
In this briefing we address the main issues facing employers when dealing with the CoVID-19 outbreak.
General Principles
PRC employers should:
- Monitor and follow advice and guidance from relevant authorities such as the World Health Organisation (“WHO”); the PRC National Health Commission and its local counterparties; the PRC Ministry of Human Resources and Social Security and its local counterparties;
- Assess the risks faced by their employees and visitors and implement measures to mitigate those risks, paying particular attention to vulnerable staff (such as those who are pregnant; with impaired immunity; on secondment or working away from home)
- Inform their employees and, where relevant, recognised unions about their proposed measures
- Review their need for flexible working and whether existing contracts and working arrangements permit such flexibility, and if not, consider how this might be achieved
- Review policies governing business travel, holidays, leave, salary payment, social security and housing funds, sickness, caring for dependants and home working to ensure a reasonable and consistent approach, taking account of their risk assessment and government guidance
- Review relevant insurance policies and guidance issued by their insurers
- Update contact details for staff and management
- Devise arrangements for dealing with staff who have to travel abroad; who may be at particular risk of contracting CoVID-19; or who report symptoms and may have CoVID-19
- Perform reporting obligations in the event of a suspected or confirmed case of CoVID-19
1. Employer’s duty of care – what does the law in the PRC say?
Employers in the PRC have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees and anyone else who may be affected by the employer’s business, including visitors and members of the public.
Employers should therefore consider whether their existing arrangements for protecting staff and visitors take account of the risks arising from CoVID-19 and they should regularly re-assess those risks as the situation develops or new guidance is issued by the national and local governments and the WHO. This would include conducting risk assessments to identify the likelihood of staff contracting CoVID-19 whilst at work and appropriate measures to control that risk.
One of the requirements for businesses re-opening in China, is for employers to provide personal protection equipment to their staff, such as alcohol wipes and hand sanitizers, face masks, with additional measures for staff at higher risk of exposure to CoVID-19, for example, those in contact with medical patients or visitors from high-risk regions.
Employers should inform employees about all social distancing and infection control measures they are taking and the extent to which they require their staff to adhere to these measures (such as personal hygiene, social distancing etc).
Employers may also consider implementing measures to screen visitors to their premises, for example requiring them to certify that they have not recently visited a high risk area.
If an employer fails to implement appropriate measures then it will potentially leave itself exposed to employees asserting that they have grounds for refusing to attend work, on the basis that doing so would place them in “serious and imminent danger”.
Employers should consider implementing protocols to deal with employees under mandatory quarantine; who have self- quarantined; who have travelled to high risk destinations; who propose going on holiday to such destinations; or who appear to be at risk or are ill, potentially with CoVID-19.
Protocols will help to ensure consistent and reasonable treatment, thereby reducing the risk of discrimination claims.
In summary, employers should consider, and where appropriate implement, appropriate measures; explain those measures to their employees; and explain the steps they are taking to monitor the situation.
2. Business travel – should travel be restricted?
The government currently advises the PRC nationals who are currently in the country not to travel abroad and those who are outside the country to avoid international travel.
As the outbreak is spreading, employers should assess the need for staff to travel abroad; their right to require staff to travel or work in specific locations; and whether additional measures are necessary to protect staff travelling on business.
These measures may include contingency planning for the possibility of staff being quarantined or falling ill when travelling abroad. Employers should review their current travel and medical health insurance arrangements and whether they remain in force and are adequate.
In considering whether staff should still travel, employers should consider the purpose of the travel and whether there is an alternative; the latest government and international guidance; guidance from their occupational health advisor; and available measures to mitigate risk.
3. Flexible working – can an employer require staff to work flexibly?
Employers are likely to need staff to work flexibly, including asking staff to work from different locations, to work from home or to perform different duties. Staff contracts may entitle the employer to require staff to work flexibly. If so, employers should normally consult with staff before exercising their rights to require flexible working and should listen sympathetically if staff have personal reasons why they cannot work flexibly.
If the employer needs employees to work outside the terms of their existing contracts then it will have to agree the flexible arrangements with the individual employee, or with a recognised union if collective bargaining is in place.
In any event, it is important that the employer can justify the need for flexible working and that it behaved reasonably and proportionately when implementing different working arrangements.
Alternatively, if the reason for flexibility is personal to the employee, in that the employee is at risk of having been infected, then the employer would have good grounds for requiring the employee to work from home, provided their enforced removal from the workplace lasts no longer than is necessary and they are provided with support.
4. Staff who are unable or unwilling to attend work?
Some staff may be able but unwilling to attend work because they are concerned about contracting CoVID-19. Employers should listen to the reasons for their concerns and to try to find an agreed resolution. Where work can be undertaken from home, it may be possible to agree home working for a short period. Alternatively, employers or their trade union (if any) may inform the staff of the importance of the business reopening and try to persuade them to return to work in a timely manner. For those who still refuse to return to work without a valid reason, employers may take necessary disciplinary measures against them.
In other cases, such as site-based work or where staff are unable to work due to caring for dependants, it may be possible to agree that time away is taken as paid or unpaid leave or rest days in lieu. However, if an agreed resolution cannot be found and an employee refuses to attend work without good cause, disciplinary action could be considered.
Before taking action, employers should ensure that they have undertaken a risk assessment and have taken steps to mitigate any workplace risks which might cause employees concern. They should also ensure that they have dealt with requests to remain away from work in a proportionate, reasonable and consistent manner.
Other employees may be willing but unable to work due to the quarantine or other emergency measures adopted by local governments (e.g. citywide lockout, disruption of transportation, blockade of village/community, mandatory home-stay or collective medical observation after returning to the work location etc.). For these employees, if commercially feasible, employers may arrange for them to work from home via network, telephone or other flexible methods. If it is not feasible, subject to negotiation with the employees, employers may arrange for the employees to take paid or unpaid leave or, if permitted by local rules, comprehensively adjust the use of rest days during the current calendar year.
5. If staff cannot attend work, are they entitled to pay?
This will depend on the reason for the non-attendance.
For employees who have tested positive for or are suspected of having been infected with CoVID-19 or who have a close contact with an individual who has tested positive for or is suspected of having CoVID-19, during the period in which they have been subject to isolated treatment or medical observation, they are entitled to normal salary.
For employees unable to come to work due to the quarantine or other emergency measures adopted by local governments (e.g. citywide lockout, disruption of transportation, blockade of village/community, mandatory home-stay or collective medical observation after returning to the work location), in principle, normal pay should be paid to such employees until the relevant government measures have been officially lifted. Employers may request such employees provide the relevant certificates (e.g. official letter/notice issued by the relevant local authority) for verification purpose. However, as mentioned above, subject to negotiation with the employees, employers may alternatively arrange employees to take paid or unpaid leave or comprehensively adjust the rest days. If the employees still remain unable to come to work once these measures are exhausted, employers may, subject to the negotiation with employees, refer to the relevant laws and regulations on suspension of business operation (i.e. normal salary payable within one payment circle and living allowance payable during the period exceeding one payment circle).
Note that in certain localities such as in Beijing each family is permitted to have one employee to stay at home to take care of any children due to the postponement of the reopening of schools. Employers may arrange that such employees work from home via telephone, network or other flexible methods, or arrange that such employees provide work via staggered working days (错时), flexible working (弹性) , or comprehensively adjust the use of rest days during the current calendar year.
6. If there is a decreased requirement for staff due to the CoVID-19 outbreak, can employers require employees to take annual leave during a shutdown period?
Subject to local guidance as issued by the relevant local authority, employers can arrange for employees to take annual leave.
7. What other contingency planning steps should employers be taking?
Effective planning is key to ensuring business continuity and the protection of employees. In addition to the above, employers should:
- Create a senior team to co-ordinate monitoring government guidance, implementing measures and providing information and support to staff
- Devise an appropriate communications plan to keep staff fully informed, even when they are absent from work, together with provision of emergency contact details
- Ask employees to report if they are ill or at particular risk of infection; and inform them of the steps they should then take to receive appropriate medical attention
- Train managers on the employer’s measures and provide them with information to identify and respond to risks, as well as providing support and training to staff on key facts and risks
- Consider alternatives to travel such as using videoconferencing or webinars
- Identify and track employees who are abroad or stuck in the key epidemic areas and consider appropriate measures to support them
- Identify key roles in their business which are essential for business continuity and the measures necessary to ensure their resilience (for example remote working or split key teams into different locations)
- Consider any measures necessary to sustain widespread home working
- Review relevant policies (for example home working, sickness, emergency leave) and agree changes to staff contracts to deliver flexibility
- Consider how temporary shutdowns of premises might be managed
- Review their insurance coverage
- Consider their stance on requests to work flexibly and on self-isolation, quarantine and sickness and ensure that it is reasonable, fair and applied consistently
- Keep in touch with and seek guidance from the local community or street office in the location where the employer is registered
8. Where can guidance from the PRC government and international bodies be found and monitored?
The PRC National Health Commission’s official website provides official information on prevention and control of CoVID-19: http://en.nhc.gov.cn/
The PRC Ministry of Human Resources and Social Security’s official website provides the latest official information and requirements on proper treatment of employment relationship during the epidemic of CoVID-19: http://www.mohrss.gov.cn/
The World Health Organization’s information on the CoVID-19 may be found here: https://www.who.int/emergencies/diseases/novel-coronavirus-2019
Other useful resources for employers are the official website and WeChat account of the local people’s government and labour authority.
9. Is there any obligation on a private employer to report any cases or suspect cases of COVID-19 to the relevant local authorities?
Generally speaking, in the event that an employee presents with a fever or other suspected symptoms, employers are obliged to immediately report the situation to the local community or street office in the location where the employer is registered and the local community or street office will instruct the employer to take further steps.
If, as instructed by the local community or street office, the employee in question is sent to hospital to seek medical advices, the employer should closely follow up on the health condition of the employee in question. To the extent that it is confirmed by the hospital that the employee is infected, the employer should immediately make a separate report to the local community or street office.
Jack Cai, Managing Partner, Eversheds
jackcai@eversheds.com
