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Quid Pro Quo?—Payment During NCP

February 11, 2020

This old Latin phrase is used by lawyers to explain that an exchange of goods and services for payment is usually contingent upon the other or “I owe you and you owe me”. In our daily language this legal principle is reflected in phrases such as “an eye for an eye” or “you scratch my back, and I’ll scratch yours”, and last but not least “one hand washes the other”. The latter one cannot be stressed more than enough in this testing Coronavirus times. Pardon the pun.

However, this should lead us to our legal questions of today such as whether an employee will be paid if he or she won’t be able to go to work due to the epidemic? How to calculate overtime pay during the extended Spring Festival holiday? What if a labor dispute arose during this time?

We already published two articles regarding the central government’s policy about such issues: Stabilizing labor relations in challenging times, CNY Holiday Extension & Updates on Curbing Virus Outbreak, However, how to interpret those new policies remains a challenge. On 8 February 2020, the Ministry of Human Resources and Social Security of Jiangsu Province elaborated upon the application of relevant laws and policies. We believe that their explanation is rather comprehensive and reasonable in accordance with relevant provisions. We therefore prepared the English version accordingly and share it as follows:

1. Question (Q): Do employers have to pay wages to employees who are pneumonia patients, suspected patients, close contacts during their isolated treatment or during medical observation, and for employees (including labor dispatchers) who are unable to provide regular work as a result of the government’s quarantine measures or other emergency measures?

Answer (A): A company shall treat the employees who are pneumonia patients, suspected patients, close contacts during their isolated treatment or during medical as they have provided regular work and shall therefore pay the employees’ agreed remuneration for that period. After the end of the quarantine measures or other emergency measures implemented by the government, the company shall pay the employee who needs to stop working due to treatment in accordance with the relevant provisions about medical treatment.

2. Q: How to calculate the extended Spring Festival holiday overtime pay?

A: During the extended holiday holidays (31 January, 1 February and 2 February), the company shall arrange for employees to work in accordance with the provisions of the Labor Law of the People’s Republic of China. If a make-up leave cannot be arranged, the remuneration shall be paid at a rate not less than 200% of the employee’s daily or hourly salary.

3: How should a company pay wages of employees during the suspension of work ?

A: Company shall pay employees in accordance with the relevant provisions on wage payment during the period of stoppage and shutdown, when it delays the resumption of work in accordance with the requirements of the provincial government. I.e., the company shall pay wages of employees in accordance with the standards stipulated in the labor contract during the period of suspension and shutdown within one wage payment cycle. In case of more than one wage payment cycle, the company shall pay living expenses amounting to not less than 80% of the local minimum wage. However, if a company negotiates with its employees to use such holidays as paid annual leave first, wages shall be paid in accordance with the provisions of the relevant leave; if the company requires the employees to work from home, the wages shall be paid in accordance with the law.

4. Q: If employees are unable to return to work on time after 9 February, how will the company pay wages?

A: If employees are unable to return to work on time after 9 February, relevant regulations on wage payment during the period of stoppage and shutdown shall be implemented (as explained above (kindly refer to A 3)

As a result of the prevention and control of the epidemic, if the company requires the employees to postpone their return to work after 9 February, the company may, in consultation with their employees, use such holiday as paid annual leave first and pay wages in accordance with the provisions of the relevant leave, or pay living expenses to the employees during their suspension of work in accordance with the relevant provisions.

5 Q: Can a company terminate the labor contract with its employees, if they are Novel Coronavirus Pneumonia (NCP) patients, suspected patients, close contacts during their isolation treatment or during medical observation, or unable to provide regular work because the government implemented isolation measures or other emergency measures?

A: A company may not terminate a labor contract with these employees. During this period, the expiration of the labor contract shall be extended to the expiration of the medical period, the expiration of the medical observation period, the expiration of the period of isolation or the end of the emergency measures taken by the government.

Companies that have encountered difficulties in production and operation, are encouraged to negotiate with their employees by means of democratic procedures to adjust salaries, shifts or job rotations, shorten working hours and resort to other means to stabilize employment and reduce layoffs.

6. Q: During the epidemic prevention and control period, how should employees defend their rights when encountering employment disputes?

A: Employees can log on to the website of Jiangsu Human Resources and Social Security in the event of a labor dispute, or call 12333 to select a mediation specialist. If a party affected by the outbreak cannot apply for arbitration in labor disputes before the statutory deadline, which is within one year since the dispute occurs, the time limit for arbitration shall be suspended. The time limit for arbitration shall continue to be calculated from the date of the elimination of the reason for the suspension.

7. Q: Does it amount to a work-related injury if medical staff get infected by the NCP due to the epidemic prevention work they are providing? How should they apply for it?

A: A person who gets infected with the NCP due to the performance of his or her duties may be regarded as a work-related injury. The departments of HR & SI at all levels shall complete the job of identifying work-related injuries within 3 days after accepting applications.

NCP outbreak, payment during NCP outbreak, resumption of work, shutdown

Stabilizing labor relations in challenging times

February 9, 2020

On 7 February 2020, the Ministry of Human Resources and Social Security jointly with three other national organizations of the PRC issued an “opinion with regards to doing a good job in stabilizing labor relations and supporting companies to resume their operations during the prevention and control of the novel coronary virus pneumonia epidemic”.

The highlights are as follows:

I. Paying close attention to the new challenges brought about by the outbreak to labor relations

Companies and employees should be guided in sharing the responsibility in overcoming current difficulties, and to ensure overall harmony and stability of labor relations.

II. Flexibility while handling labor issues

* Companies are encouraged to negotiate with employees to resolve employment issues before resuming work. If employees cannot resume work on time or companies cannot start production on time due to the outbreak, companies may try to arrange for employees to work from home by telephone, internet and other flexible ways to meet their job obligations. Companies who are unable to do so are recommended to negotiate with employees to use their paid annual leave or other welfare leave available as a first option.

We should help companies to minimize the losses caused by the impact of the epidemic on the basis of taking into account the legitimate rights and interests of both companies and employees.

Companies are encouraged to negotiate with employees to resolve employment issues before resuming work in the recent outbreak of NCP

* Encourage flexible working hours. Companies are encouraged to negotiate with employees to enable flexible working hours by working at different time periods or with flexible commuting schedules. For companies that need to work overtime to meet the epidemic prevention and control tasks assigned by the government, after negotiation with trade unions and employees and under the premise of ensuring the health and safety of their employees, companies may appropriately extend their working hours and shall not be subject to the restriction of extended working hours in accordance with the law.

* To guide and standardize the management of employment. A company shall not, during this period, terminate a labor contract with employees who are unable to provide regular work as a consequence of being affected by the relevant measures or return dispatched employees. For companies that meet the requirements to resume work, companies should be instructed to provide the necessary epidemic prevention protection and labor protection measures, and actively mobilize employees to return to work. For employees who do not wish to return to work, companies should advise employees to return to work on time. If employees refuse to return to work without justified reasons, companies shall deal with such behavior in accordance with the law.

III. Wage negotiation

* Support should be provided in negotiating wages during the period of absence. During the period of delayed resumption or non-return to work affected by the outbreak, for employees who have used up all kinds of leave, but who are still unable to provide regular work or other employees unable to provide regular work, the companies shall be instructed to pay wages in accordance with the standards stipulated in the labor contract within a period of a wage payment period, in accordance with the relevant regulations of the State on the payment of wages during the suspension and shutdown and via negotiation with employees. For the time beyond one wage payment cycle, living expenses shall be provided by companies in accordance with the relevant provisions.

*To support companies in negotiating wages with employees. Companies that have encountered difficulties in production and operation, are encouraged to negotiate with their employees by means of democratic procedures to adjust salaries, shifts or job rotation, shorten working hours and other means to stabilize employment. Those companies who are unable to pay wages for the time being, shall be guided to negotiate with trade unions or staff representatives to defer payment, in an effort to help companies to reduce the pressure on capital turnover.

* To protect the rights and interests of employees’ wages and their treatment. For employees who are unable to provide regular work due to quarantine, companies shall be instructed to pay their wages in accordance with~~normal~~regular work ~~labor~~; after the quarantine, wages shall be paid in accordance with relevant medical periods for those who still need to refrain from working due to their treatment. For employees unable to take leave due to epidemic prevention and control measures during the extended Spring Festival holidays, companies shall first try to arrange some form of “make-up leave”, and for those whom “make-up leave” cannot be arranged, overtime payments shall be made in accordance with the law.

IV. Other measures to reduce the burden on companies

* the cost of companies for employment stabilization shall be reasonable shared

*Free online training is available at px.class.com.cn

labor contract in outbreak of NCP, resuming work

My Nanny & I

January 30, 2020

From time to time, we get questions from our readers such as the following: “Do I need to pay my nanny while she’s on leave? Do I have to pay her overtime? Do I need to pay social insurance for her?”

First, let’s see what kind of legal relationship exists between you and your nanny. Similar to employees working for an employer to get a salary in return (you may read our post “What are the Rights of Employee in China?” to know more), nannies provide domestic services to get remuneration in return. However, according to the explanation regarding the application of Chinese labour law provided by the former Ministry of Labour and Social Security (now Ministry of Human Resources and Social Security) of the PRC, “the scope of this law excludes agricultural workers, active-duty military personnel and family nannies.” Hence, the relationship between you and your nanny is not a labour relationship.

the relationship between you and your nanny is a domestic services contract instead of a labour contract, the principle of freedom of contract applies.

In another words, the principle of freedom of contract applies. This allows you to negotiate with your nanny the terms of her contract, which is a domestic services contract instead of a labour contract, freely.

So, technically, you don’t have to pay overtime or social insurance on her behalf as required under labour law, and you can terminate the contract with your nanny without worrying about severance pay, if you are not happy with your nanny’s service. Or you can ask her to work for you during holidays, as long as you both agree upon the respective remuneration.

Our legal tips:

1. We suggest that you sign a domestic services contract with your nanny, so that she will be aware of her duties and responsibilities and knows what you expect of her to avoid any future dispute.

2. Please remember, though it’s not required by law to pay social insurance on behalf of your nanny you might be faced with liability if any accident happens to your nanny while she is being on service for you. You remain responsible for the personal damage compensation (covered by civil law) instead of industrial injury compensation (covered by labor law), which may include: medical expenses, lost income, hospital meal subsidies, nutritional costs, care services, transportation costs and equipment costs of disability, if any. So, to be on the safe side you might as well consider concluding an insurance on her behalf.

3. Though the payment of overtime is not required, it’s a very common practice to give your nanny a “hongbao” on Chinese traditional holidays, such as CNY or the Mid-Autumn Festival. The amount is up to your personal discretion or the level of your community or local expenses.

civil law, industrial injury compensation, Labor law, personal damage compensation

How China Deals With Rumors in Light of The Coronavirus

January 30, 2020

On 28 January 2020, the Supreme Court of the PRC published an article on its official Weibo account with regards to handling rumors about the coronavirus and new type of pneumonia. The article mentioned 8 people punished by the Wuhan PSB because they claimed “confirmed 7 cases of SARS in South China fruit & seafood market”.

The Supreme Court’s article stated: “Although the new type of pneumonia is not SARS, however the information they released is not completely fabricated. It may have been a blessing if the public had listened to the “rumor” and had acted accordingly on the basis of an alleged SARS panic. Therefore, when dealing with rumors, law enforcement agencies should fully consider if the publisher of such information or the person who disseminates such information is subjectively malicious, and has the capability to cognize things. As long as the information is basically true, the publisher and the person disseminating such information is not subjectively malicious, and no serious harm is caused in the end, therefore we should maintain a tolerant attitude towards such “false information.”

At the same time, the article analyzes what kind of rumors must be cracked down upon. It says, the following types of information should be the object of severe crackdowns and can be subject to administrative punishment. Furthermore, they shall constitute a crime of instigating quarrels and provoking troubles in case of serious consequences.

1. Rumors related to the situation of the epidemic, resulting in chaos

For example, fabricating information about the outbreak in a place where there is no outbreak which consequently results in social disorder or chaos. However, if there is no subjective malice, rumors are only spread on a smaller scale, the consequences of social disorder is relatively limited, the main method to deal with the person spreading such rumors should be criticizing and education, supplemented by administrative punishment. Criminal punishment should not be considered unless under extreme situations.

2. Rumors related to the defamation of the state’s control of the epidemic resulting in social order chaos

The professionals concerned can make their own suggestions and even well-intentioned criticisms. However, wanton fabrication of the state’s control of the epidemic and other information, or spread of rumors while knowing that this is false information, should be seriously dealt with according to the law, or should be prosecuted under criminal law if necessary.

Indiscriminate fabrication of facts, might cause easily a serious public panic, such fabrications should be severely punished according to the law.

3. Rumors involving fabricating information about medical institutions treatment being “out-of-control” , which caused chaos in society

In view of the outbreak prevention and control has been upgraded to national action, the treatment or disposal of the epidemic should be absolutely based on the state’s authoritative information channels. Any act of fabricating the above-mentioned false information and disseminating it will easily cause great panic among the public, such fabrication is subjectively malicious and will harm society gravely. Therefore, it should be resolutely dealt with in accordance with the law.

4. Other rumors that tend to cause disorder

Indiscriminate fabrication of facts, such as exaggerating the death toll of victims, exaggerating the death rate of the disease, fabricating negative information such as so-called doctor “self-narratives” etc. This is not intended to provide goodwill and might rather cause easily a serious public panic. Therefore, such fabrications should be severely punished according to the law.

Useful link:

The Supreme People’s Court of The People’s Republic of China

coronavirus in China, Indiscriminate fabrication of facts, new type of pneumonia

How to Make Overtime Payment

January 29, 2020

Recently, the State Council decided to extend the 2020 Spring Festival holiday until 2 February 2020. At the same time, some local governments, such in Shanghai, announced that companies must delay resuming their work till 9 of Feb 2020. Many people now wonder: what’s the differences between extending the Spring Festival holidays and postponing going back to work?

Postponing going back to work was necessary for the control of the virus outbreak and that these days were “days off” and shall be paid overtime payment

The following will help:

On 28 January 2020, at the press conference held by the local government, officials from the Shanghai Social Security Bureau explained that postponing going back to work was necessary for the control of the virus outbreak and that these days were “days off”. Employees who don’t work during these days, must be paid by their employers in accordance with the terms stipulated in their labor contracts. For employees who have to work for any reason， the company shall arrange other times for rest in lieu or, shall pay overtime wages in accordance with related provisions. In another words, the company should pay two times of normal wages as overtime payment. While the Spring Festival holiday is a statutory holiday, a three times of normal wages has to be paid as overtime payment, if employees have to work during this holiday.

At the same time, the official recommended that companies should try and enable employees to work from home. If employees are working from home during these days as required by their companies, such work is considered to be “working overtime”. Companies shall therefore grant additional days of rest, or pay overtime wages in line with the law.

For more provisions about overtime payment, you may check our previous post:

Overtime Payment and Statutory Holiday

Useful link:

Ministry of Human Resources and Social Security of the People’s Republic of China

overtime payement, virus outbreak

CNY Holiday Extension & Updates on Curbing Virus Outbreak

January 27, 2020

1.China extends Spring Festival holiday

The General Office of the State Council announced on 27 January 2020 that the Lunar New Year holiday will be extended until 2 February 2020 as a measure to contain the novel coronavirus outbreak.

The announcement also provides that:

Universities, primary and middle schools and kindergartens across the country will have to postpone their re-opening for the spring semester until further notice.

Employees unable to take leave due to epidemic prevention and control can take deferred holidays in accordance with the labor Law. Their wages and remuneration for the leave not taken should be paid in accordance with relevant policies.

2. Measures regarding the cities of Beijing, Shenzhen and Guangzhou

On 26 January 2020, related authorities in Beijing, Shenzhen, Guangzhou and Nanjing stated that their cities “will not be blocked”.

a) Beijing

A Beijing Municipal Transportation Commission spokesman said that “external traffic is basically normal”, the city is currently not cordoned off and also not about to be cordoned off. At present, Beijing suspended flights to and from Hubei. Other flights are operating regularly. All expressways and ordinary highways in Beijing are open, buses and subways are also maintaining regular operations. However, the measurement of temperature monitoring, ventilation etc. will be further enhanced.

b) Shenzhen

Information that Shenzhen’s going to be a “sealed-off city” is a rumor.

c) Guangzhou

Internal and external traffic is normal. Temperature monitoring is undertaken in the airport, public transport stations, docks and other places, in order to prevent the spread of the epidemic, especially to reduce imported cases, but there is no “sealed-off city-policy” currently in place.

3. Guangdong demands people wear masks in public places

The Office of the Pneumonia Prevention and Control Command for the New Coronavirus Infection in Guangdong issued a notice on 26 January 2020, demanding that people have to wear masks in public places.

China announced on 27 January 2020 that the CNY holiday will be extended until 2 February 2020 as a measure to contain the novel coronavirus outbreak.

For this purpose, public places include:

(1) Hotels, guest houses, restaurants, cafes, bars, teahouses;

(2) Public bathrooms, barber shops and beauty shops;

(3) Cinemas, karaoke halls, video halls (rooms), amusement halls (room)s, dance halls, concert halls;

(4) Stadiums, Swimming Pools, Parks, Scenic Areas, Religious Places, Commercial Streets, Pedestrian Streets;

(5) Shopping malls (shops), bookstores;

(6) Waiting rooms in hospitals, waiting rooms (to board flights or boats), highway service areas, public transport (including online car-hailing and taxis);

(7) Exhibition halls, museums, art galleries and libraries;

(8) Other public places where people gather.

The notice requires operators and managers of public places to request persons to wear masks before they enter public places in which they operate, and to set up prominent and clear notices with regards to the obligation of wearing masks at the entrance to their premises.

Those who obstruct emergency response staff from performing their duties, violate the “Law of the PRC on Administrative Penalties for Public Security”, and constitute violations of public security administration, shall be punished by the public security organs in accordance with the law.

The notice shall come into effect as of the date of publication, and the date of termination shall be announced separately.

Notice on Tackle Coronavirus Effect on Employment

China Classifies Coronavirus as Category B Infectious Disease

Useful link:

THE STATE COUNCIL OF THE PEOPLE’S REPUBLIC OF CHINA

coronavirus in China, , Curbing Virus Outbreak

Notice on Tackle Coronavirus Effect on Employment

January 26, 2020

On 24 January 2020, the Ministry of Human Resources and Social Security of the PRC announced its “Notice on the proper treatment of labor relations during the prevention and control of the pneumonia outbreak caused by the new coronavirus infection”.

China announced “Notice on the proper treatment of labor relations during the prevention & control of the pneumonia outbreak caused by the new coronavirus infection”.

Main content of the notice as follows:

1. For pneumonia patients, suspected patients, close contacts during their isolation treatments or during medical observation periods and for employees who are unable to fulfill their employment obligations as a result of the government’s quarantine measures or other emergency measures, affected employers shall pay employee’s remuneration for respective periods. Employers shall not, in accordance with Article 40 or Article 41 of the Labor Contract Law terminate respective labor contracts with said employees. Meanwhile, if the labor contract might expire during aforementioned periods, it shall be extended in line with the time of absence due to the medical period of the employee, the medical observation period or the period of isolation or the end of the emergency measures taken by the government.

2. If an enterprise encounters productional and operational difficulties caused by the epidemic, it may stabilize the operation by means of adjusting remuneration, rotation, shortening working hours, etc. by consensus with the employees, so as not to lay off or lay fewer people off. Eligible enterprises may enjoy a subsidy in accordance with the provisions. If an enterprise stops operation in one wage period, the enterprise shall pay the wages of its employees in accordance with the standards stipulated in the labor contract. If the employee provides regular work, the wage paid by the enterprise shall not be lower than the local minimum wage. If employees do not provide regular work, the enterprise shall pay the living expenses, and the living expenses standard shall be implemented in accordance with the methods prescribed by the provinces, autonomous regions and municipalities directly under the Central Government.

On 25 January 2020, the local authority in Guangdong announced its detailed notice for Guangdong province, except the provisions of above-mentioned notice. The new notice further provides:

For employees who have not returned to resume work in Guangdong in time due to the outbreak, after consensus with the employees, the enterprise may give priority to arranging paid annual leave for the employees. Among them, the cumulative employment of employees is up to 1 year but less than 10 years, the annual leave shall be 5 days; up to 10 years but less than 20 years, the annual leave shall be 10 days; up to 20 years of employment, the annual leave shall be 15 days. Employees receive the same salary during their paid annual leave as during regular working hours.

The notice also provides that if the enterprise fails to arrange the work of the employees, the living expenses of the employees shall be paid in accordance with not less than 80% of the local minimum wage standard, and the living expenses shall be paid until the enterprise resume operation or terminate the labor relations.

We believe local governments in other parts of China will also issue their notices shortly to announce measures if and when needed accordingly.

Useful link:

Ministry of Human Resources and Social Security of the People’s Republic of China

pneumonia outbreak

China Classifies Coronavirus as Category B Infectious Disease

January 26, 2020

The government of China just announced to take further steps to control the outbreak of coronavirus-related pneumonia. This form of pneumonia was just classified as an infectious disease in accordance with the law, as was decided at the State Council’s executive meeting chaired by Premier Li Keqiang on 20 January 2022.

The National Health Commission of the PRC issued announcement No. 1 on January 20, 2020 to classify pneumonia caused by infection of the novel coronavirus as a category B infectious disease according to the “Laws of the People’s Republic of China on the Prevention and Treatment of Infectious Diseases“”. However, China will take preventive and control measures of category A infectious diseases to effectively fight against this form of pneumonia. In line with this, the pneumonia has also been classified as a quarantinable disease at the borders according to the “Frontier Health and Quarantine Law of the People’s Republic of China.”

China is taking further steps to control the outbreak of coronavirus-related pneumonia, which was just classified as an infectious disease

The recent meeting called for intensified inter-agency efforts to prevent the disease from spreading. It was decided in the meeting of 20 January that corresponding prevention and control measures will be launched to tackle the disease as a public health emergency.

The measures of prevention and control will be particularly stepped upin the city of Wuhan, where the markets concerned were shut down, wildlife control tightened, and fever screening made mandatory at airports, bus stations, train stations, and ports.

Local governments must, in accordance with their local conditions and capabilities, carry out ventilation, sterilization and temperature measures as needed in key venues and public transportation facilities. At the same time, the monitoring, pre-examination and triage of the disease must be enhanced to ensure that infections will be promptly detected and effectively contained and handled.

It was further decided at the meeting that high-caliber personnel and medical resources will be pooled in tackling the disease. Sufficient funding will be made available to provide patients, particularly those suffering from severe conditions, with the best possible care. The meeting urged tight control of infections at hospitals and precautionary measures for medical workers.

“All prevention and control measures needed must be duly delivered, and inter-agency efforts enhanced to ensure earliest possible detection, reporting, quarantine and treatment of the disease, and to keep the fatality rate at a minimal level. Precautions in hospitals should be strengthened,” Premier Li said.

“The government should make timely updates about the disease and be highly responsive to public concerns to shape an objective and rational public attitude towards the disease. We also need to keep the public better informed about how to protect themselves from winter infectious diseases,” he added.

The meeting required openness and transparency to keep the public informed of developments and to ensure prevention and control in a timely and objective manner. The meeting also called for closer communication and cooperation with the World Health Organization, the countries concerned, and the regions of Hong Kong, Macao and Taiwan.

“We must communicate and share information with international organizations and overseas. Research on the disease must be intensified to work out effective prevention and treatment. This way, our efforts may be more effective,” Premier Li said.

coronavirus in China, , infectious disease

Quid Pro Quo?—Payment During NCP

2. Q: How to calculate the extended Spring Festival holiday overtime pay?

3: How should a company pay wages of employees during the suspension of work ?

4. Q: If employees are unable to return to work on time after 9 February, how will the company pay wages?

6. Q: During the epidemic prevention and control period, how should employees defend their rights when encountering employment disputes?

7. Q: Does it amount to a work-related injury if medical staff get infected by the NCP due to the epidemic prevention work they are providing? How should they apply for it?

Stabilizing labor relations in challenging times

I. Paying close attention to the new challenges brought about by the outbreak to labor relations

II. Flexibility while handling labor issues

III. Wage negotiation

IV. Other measures to reduce the burden on companies

My Nanny & I

How China Deals With Rumors in Light of The Coronavirus

1. Rumors related to the situation of the epidemic, resulting in chaos

2. Rumors related to the defamation of the state’s control of the epidemic resulting in social order chaos

3. Rumors involving fabricating information about medical institutions treatment being “out-of-control” , which caused chaos in society

4. Other rumors that tend to cause disorder

How to Make Overtime Payment

Notice on Tackle Coronavirus Effect on Employment

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