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.
