Since the Spring Festival, the central and local administrative departments at all levels, have issued a number of measures such as extended holidays, delayed resumption of work etc. to deal with the NCP outbreak, pls check our post: Stabilizing labor relations in challenging times, CNY Holiday Extension & Updates on Curbing Virus Outbreak, Notice on Tackle Coronavirus Effect on Employment, have led to concerns and intensive discussions regarding a proper implementation of these rules and policies. Hence, the Labor and Social Security Law Professional Committee of the National Bar has put forward suggestions and reasoning regarding some of those aforementioned issues. We have translated the main points as follows:
I. Nature and corresponding treatment of employees during extended Spring Festival Holidays
The purpose of the extended Spring Festival holiday (31 January till 2 February) is actually a measure to reduce large gatherings of people to control the outbreak. For clarification purposes, they recommend that the extended Spring Festival holiday is treated as a day of rest instead of statutory leave. Which means, that companies may arrange a make-up break for employees who have worked during these three days, otherwise, not less than 200% of the normal wages have to be paid.
II. Nature and corresponding treatment of employees during the delayed resumption of work (except in Hubei)
According to the suggestion, in China, more than 80% of employees work in SME’s. However, many SME’s may not be able to start normal operations just because the epidemic cannot be controlled within such a short time. Except there is no respite from revenue or capital demands, these companies also have to deal with rental payments, outstanding loans, labor expenses and other costs of doing business which could lead to existential problems. In the end, it is likely that jobs might be drastically reduced, which in consequence will affect the entire economy.
The experts further pointed out, that the purpose of a delayed resumption of work is an expedient way to control the outbreak of NCP instead of increasing employee’s rest or vacation. It cannot be simply concluded that this delayed period is equivalent to a leave, nor can it be concluded that the work during the delayed period is overtime, otherwise it will deviate from the original intent of the law–to maintain normal productional and operational order.
As a consequence, they recommended:
1. The delayed period should be clearly characterized as a stoppage period instead of a holiday or an additional day off.
2. For employees who needed to resume work in advance or worked from home during the delayed period, their regular salary shall be paid. Their provision of labor shall be treated as regular work instead of overtime.
3. Work from home and other flexible working methods are recommended. If work from home can’t be arranged, the company may try to arrange paid annual leave, welfare leave provided by company, or resort first to rest and then make up shifts etc. Furthermore, a comprehensive transfer of paid annual leave, enterprise-owned welfare leave and rest days, the implementation of first leave or rest and then make up shifts, shall be considered.
4. Those who fail to provide regular work during the delayed resumption of work, shall be dealt with in accordance with the provisions of the Notice released by the Ministry of Human Resources and Social Security of PRC on 24 January 2020, which means the company will provide living expense according to the respective local level.
III. What if companies use annual leave to offset the time that employees have not provided work during the period of delayed resumption of work?
The experts suggest that the company can do the offset directly.
Useful link:
Ministry of Human Resources and Social Security of the People’s Republic of China
