The novel coronavirus pneumonia epidemic has been heating up in various provinces and cities in China, with 14,380 confirmed cases and 19,544 suspected cases nationwide as of 24:00 on Feb 2.

In order to curb the expansion and spread of the impact of the novel coronavirus pneumonia epidemic, The State Council, local governments at all levels and relevant departments have formulated corresponding emergency measures according to the current situation of the epidemic in different regions, in accordance with the Law of the People's Republic of China on the Prevention and Control of Infectious Diseases, the Law of the People's Republic of China on Emergency Response and other laws and regulations, mainly including the extension of the Spring Festival holiday. The postponement of the return date of enterprise employees. The labor legal relationship during the epidemic has inevitably become one of the most concerned issues for employers and workers in all walks of life. Based on the existing policies and laws and regulations, this article will answer hot issues such as salary payment, labor relations adjustment, and employee management of employers during the epidemic.

1. Calculation of workers' wages and remuneration

Question 1:

The General Office of the State Council issued a notice on the extension of the Spring Festival holiday for three days on January 26, 2020. Is the nature of the three days a legal holiday? How is the remuneration calculated for workers working on a fixed time schedule during the extended three-day holiday?

A: (1) The extended three-day holiday is a rest day in nature and not a statutory holiday.

The statutory holidays are determined by the "National Holiday Measures for Annual Festivals and Anniversaries" issued by The State Council (hereinafter referred to as the "Measures"), and the "Notice of The General Office of the State Council on extending the Spring Festival holiday in 2020" cannot delete and change the statutory holidays in the "Measures". China's Spring Festival holiday statutory holidays for three days, the specific date is the first, second and third day of the first lunar month, that is, January 25, 2020 to January 27, 2020, the rest of the Spring Festival holiday period are rest days. Therefore, even if the Spring Festival holiday is extended in 2020, the extended holiday should not be recognized as a statutory holiday.

"Employees who cannot take time off due to epidemic prevention and control should take compensatory time off in accordance with the labor law," said the New Year holiday extension notice. According to Article 44 of the Labor Law of the People's Republic of China, the employer shall directly pay three times the wages to the employee who works during the statutory holidays, and the employer shall not give the compensatory leave, which is only for the employee who works during the rest day, not the employee who works during the statutory holidays.

Therefore, based on the above two points, we consider that the extended three-day leave is a rest day in nature rather than a statutory holiday.

(2) The wages and compensation of the workers under the fixed work system within three days shall be calculated in accordance with Article 44 of the Labor Law.

According to the provisions of Article 44 of the Labor Law of the People's Republic of China, the enterprise shall pay wages according to the standard agreed upon in the labor contract for the workers who take a rest during the rest days, and shall provide compensable rest for the employees who are unable to take compensable rest.

Question 2:

The provincial and municipal governments in some areas of China have issued an announcement of the postponement of the resumption of work of enterprises under their jurisdiction. What is the nature of the "postponement period"? How is the salary of a worker on a fixed time working system calculated during the extended return period?

A: (1) The nature of the "deferred return to work period" varies according to the industry and region in which the employer is involved.

At present, the governments of Zhejiang, Jiangsu, Guangdong, Shandong, Fujian, Shanghai and Chongqing issued a notice stipulating that except for some enterprises involving important national economy and people's livelihood, the remaining enterprises shall not resume work before 24:00 on February 9, 2020. The Hubei provincial government issued a notice that enterprises in the province are not allowed to resume work before 24:00 on February 13, 2020. The period from February 3 to February 7, 2020 is the "delayed resumption period", and the period from February 8 to February 9 is a weekend.

For employers that are involved in important national economy and people's livelihood, such as those involved in epidemic prevention and control (pharmaceutical industry, etc.), ensuring urban operation (water supply, power supply, gas supply, communications, etc.), people's livelihood (supermarkets, food production and supply, etc.), and other enterprises that are involved in important national economy and people's livelihood, The "extended return to work period" (February 3 to February 7) is a normal working day.

For other enterprises specified in the announcement, there are two conclusions:

1. Fei Yuqing, Deputy Director of the Shanghai Human Resources and Social Security Bureau, made it clear in an interview with reporters at 3:00 PM on January 28, 2020, that for the workers of ordinary enterprises within the jurisdiction of Shanghai, the nature of the extended return to work period (from February 3 to February 7) is a rest day (equivalent to a weekend).

Second, other provinces and cities except Shanghai have not made a clear definition of the "delayed resumption period", and there are two main types of views.

The first view is that the "extended period of return to work" should be regarded as a normal rest day, and the ordinary enterprise workers working from home during this period should be compensated by the enterprise or pay an overtime fee equivalent to 200% of the employee's normal working hours.

Second, this view holds that local governments postpone the resumption of work for enterprises to reduce the concentration of employees. If the nature of employees' work is flexible and they have the conditions of working from home, for such workers, the "delayed resumption period" should be considered as a normal working day, and the enterprises should pay the workers according to the standard agreed on in the contract, without paying double wages or arranging compensable holidays.

(2) The calculation of the remuneration of workers with fixed working hours during the extended return to work period varies according to the industry and region in which the employer is involved.

For enterprise workers involved in important national economy and people's livelihood, during the period of delayed resumption of work, their salaries shall be paid in accordance with the standards stipulated in the labor contract.

For the workers of ordinary enterprises in Shanghai, if the workers rest during the period of delayed resumption of work, the salary shall be paid according to the standard stipulated in the labor contract. If the worker works in office, the employer shall arrange compensatory rest for the worker. If the worker cannot take compensatory rest, the employer shall pay the overtime expenses at 200% of the labor remuneration for the employee's normal working hours.

There is no clear conclusion on how to pay ordinary enterprise workers outside Shanghai.

Question 3:

For workers who work under the irregular working hours system during the extended Spring Festival holiday or the delayed resumption of work, do companies need to arrange for workers to take compensatory days off or pay overtime?

A: No need.

Since the extended Spring Festival holiday period and the delayed return to work period are not legal holidays, regardless of whether the delayed return to work period is characterized as a rest day or a working day, the company does not need to pay overtime to the workers who work during this period or arrange for rest. Workers who implement the irregular working hours system can freely arrange their rest time, and the failure of the enterprise to pay overtime or arrange compensatory rest does not harm the rights and interests of such workers.

Question 4:

How should workers be paid during periods of medical observation or isolation?

A: During the period of medical observation or isolation of the worker, the employer shall pay the worker normal wages.

According to the Announcement of the National Health Commission of the People's Republic of China (No. 1 of 2020), the novel coronavirus pneumonia belongs to Class B infectious diseases, and the prevention and control measures of class A infectious diseases shall be adopted. According to the provisions of Article 1 of the Notice on Proper Handling of Labor Relations during the Prevention and Control of the Novel Coronavirus Pneumonia Epidemic issued by the Ministry of Human Resources and Social Security (Ministry of Human Resources and Social Security Telegram [2020] No. 5), if a worker is under medical observation or quarantined due to infection or suspected infection with the novel coronavirus pneumonia, The salary during the period of medical observation and isolation shall be paid by the employer according to the salary during the normal working period.

Question 5:

If a worker is released from medical observation or isolation, but is still infected with the novel coronavirus and unable to work normally, how should his or her salary be calculated?

A: The calculation shall be made in accordance with the provisions of the laws and regulations concerning the payment of wages and remuneration during the period of illness in the regulations on wage payment and the announcement on the calculation of sick pay in each region.

Question 6:

After the extension period expires, if the enterprise still needs to suspend production due to the epidemic, how should the salary of the workers during the suspension period be calculated?

A: During the period of enterprise shutdown and production, the employer shall pay the standard wage to the employee in the first month of shutdown and production. In the second month, according to the regulations of different regions, the employer should pay the basic living expenses to the employees, and the living expenses standard is generally 70% to 100% of the local minimum wage.

2. Adjustment of labor relations

Question 1:

For workers who have been quarantined for treatment or medical observation due to infection or suspected infection with the novel coronavirus, can the employer terminate the labor relationship with the worker on the grounds that the worker has contracted the novel coronavirus pneumonia?

A: No.

If the employer terminates the labor relationship with the worker who is quarantined for treatment or medical observation on the grounds that the worker is infected or suspected to be infected with the novel coronavirus pneumonia, it shall be treated as illegally terminating the labor contract in accordance with Article 87 of the Labor Law of the People's Republic of China.

Question 2:

For workers who are quarantined for treatment or medical observation due to infection or suspected infection with the novel coronavirus, can the employer terminate the labor relationship with them on the grounds of economic layoff or non-negligent dismissal?

A: No.

According to the provisions of Article 1 of the Notice on Proper Handling of Labor Relations during the Prevention and Control of the Novel Coronavirus Pneumonia Epidemic issued by the Ministry of Human Resources and Social Security (Ministry of Human Resources and Social Security Telegram [2020] No. 5), workers who are infected or suspected to be infected with the novel coronavirus during isolation and treatment, medical observation or other emergency measures are unable to provide normal work. Due to the particularity of such workers, the employing unit may not lay off employees economically or dismiss them without fault or terminate the labor relationship.

Question 3:

For workers who have been quarantined for treatment or medical observation due to infection or suspected infection with the novel coronavirus, can the employer terminate the labor relationship with the workers on the grounds that the term of the labor contract has expired during the period of quarantine treatment or medical observation?

A: No.

According to the provisions of Article 1 of the Notice on Proper Handling of Labor Relations during the Prevention and Control of the Novel Coronavirus Pneumonia Epidemic issued by the Ministry of Human Resources and Social Security (Ministry of Human Resources and Social Security Telegram [2020] No. 5), if the labor contract period signed by a worker and the employer is limited to the expiration of the period during which the worker is isolated for treatment, medical observation or other emergency measures are taken, The labor contract is automatically extended to the expiration of the medical treatment period, the medical observation period, the isolation period, or the end of the emergency measures taken by the government.

Question 4:

How should employers reduce the impact of production and operation difficulties caused by the epidemic?

Answer: The employer can actively communicate and negotiate with the worker, and reach an agreement on the change of the labor contract and the adjustment of salary through legal means. Qualified employers can also enjoy job stabilization subsidies in accordance with the provisions of the Ministry of Human Resources and Social Security's Notice on Properly Handling Labor Relations Issues during the Prevention and Control of the Novel Coronavirus Pneumonia Epidemic (Department of Human Resources and Social Security Invention (2020) No. 5).

The basic conditions for employers to enjoy stable job subsidies are:

(1) The production and operation activities conform to the national and regional industrial structure adjustment policies and environmental protection policies;

(2) participate in unemployment insurance according to law and pay unemployment insurance premiums in full;

(3) no layoffs in the previous year or the rate of layoffs is lower than the registered urban unemployment rate of the overall planning area;

(4) The enterprise financial system is sound and the management operation is standardized.

3. Management of employers' workers during the epidemic

Question 1:

Can employers offset workers' paid annual leave with "extended holiday period during the Spring Festival" and "extended return to work period"?

A: No.

The Spring Festival extended holiday period and the period of delayed resumption of work are all holidays enjoyed by workers in the country or some regions, and are rest days in nature. According to Article 3 of the Regulations on Paid Annual Leave for Workers issued by The State Council, paid annual leave for workers and rest days cannot be offset against each other.

Question 2:

During the extended holiday period of the Spring Festival, can the employer require the workers with regular working hours to return to work in advance?

A: The extended three-day holiday during the Spring Festival is a rest day in nature. According to the provisions of Article 41 of the Labor Law of the People's Republic of China, if the employer requires the workers with a fixed working day to provide labor on the rest day, it must obtain the consent of the workers and the trade union. The employer shall provide compensatory time off for the workers who perform labor acts during the extended three-day holiday, and shall pay overtime expenses at 200% of the labor remuneration for the employees' normal working hours if they cannot take compensatory time off.

At the same time, because the purpose of extending the Spring Festival holiday is to reduce personnel gathering and control the spread of the epidemic, employers should not require workers to go to the office unless special circumstances, it is recommended that employers can require workers to work at home.

Question 3:

During the period of delayed resumption of work, can the employer require the workers with fixed working hours to return to work in advance?

Answer: If the employer is involved in important national economy and people's livelihood, it can require the worker to go to the unit for normal office during the delayed resumption of work.

If the employer is not involved in the important national economy and people's livelihood, for enterprises in the Shanghai area, the employer needs to obtain the consent of the employee and the trade union for the early return of workers under the scheduled work system. The employing unit shall provide compensatory rest for the workers who perform labor acts during the period of delayed resumption of work, and shall pay for overtime work at 200% of the labor remuneration for the employees' normal working hours if they are unable to take compensatory rest.

If the employer is not involved in the important national economy and people's livelihood, for enterprises outside the Shanghai area, whether the employer can require the workers to return to work in advance without the consent of the workers, there is no clear conclusion. The employer should consult with the worker on the issue of early return to work.

At the same time, because the purpose of extending the Spring Festival holiday is to reduce personnel gathering and control the spread of the epidemic, employers should not require workers to go to the office unless special circumstances, it is recommended that employers can require workers to work at home.