CMS, China | Coronavirus Outbreak: What should companies do when employees are back to work?




CMS, China

Coronavirus Outbreak: What should companies do when employees are back to work?

Dear Sir or Madam,

Until now, the situation arising from the coronavirus is still developing in China. On 3 February, companies in around 20 provinces will come back to work while those in other provinces will resume their operations on 10 February. What do companies need do when the employees are back to work? Please find enclosed our latest updates.

Kind regards,
CMS, China

Under the Law of the PRC on Prevention and Treatment of Infectious Diseases the coronavirus constitutes a Class B infectious disease. However, the Chinese government has decided to take the same measures for prevention and control as for infectious diseases under Class A. Such measures are (i) to isolate patients and pathogen carriers for treatment during the period which shall be decided depending on the results of the medical examination; (ii) to treat suspected patients individually in isolation at designated places until a definite diagnosis is made; and (iii) to keep  persons who were in close contact with the patients, pathogen carriers or suspected patients in medical institutes under medical observation at designated places and to take other necessary preventive measures (currently such persons are required to stay at home or at an isolated place for 14 days).

The above measures for virus prevention and control are unlikely to be removed after the expiration of the public holidays of the Chinese New Year and the period of stop of work as required by some local governments (for details on these, please click here). Under PRC law, companies are obliged to take responsibilities in the process of prevention and control of the coronavirus. Please see below the details.

Obligations in the Prevention and Control of Coronavirus

According to the Law of the PRC on Prevention and Treatment of Infectious Diseases, companies have the following obligations:

To report promptly to the nearby virus control authority or medical institutes if a coronavirus patient or a suspected patient is found.
   
To adopt effective health protection measures and medical care measures according to the law for the employees who are in contact with pathogens of coronavirus during work and production, and to grant appropriate subsidies.
   
To cooperate with the competent health administrative authority and not to make rejection or interference, if the authority wants to enter the company premises to do any on-site investigation, check and copy any documents or collect samples.

Since the coronavirus has been defined as a public health security emergency event, therefore, if a company fails to take preventive measures according to laws and regulations or fails to eliminate in time hidden dangers causing the occurrence of a serious emergency, in addition to being imposed with a fine of RMB 50,000 to RMB 200,000, such company can be ordered by the competent authority to suspend business operation, and its business license can be suspended or revoked.. Further, if a company breaches the law causing any harm or property losses to any person, such company shall also bear civil liability according to the law. In serious cases, if a company refuses to implement the preventive measures leading to the spread of coronavirus or a dangerous spreading situation, according to the PRC Criminal Law, the company or the persons directly in charge or being responsible can even be subject to criminal liabilities.

Actions to be taken

Since the coronavirus can be spread easily by carriers who do not yet show symptoms, in order to implement the statutory obligations and protect the employees, companies are advised to take the following actions when or even before they resume their operation after the expiration of the public holidays and the period of stop of work:

To check if any employee has symptoms of respiratory infections such as fever or cough on the first day of work. If any employee is found with such symptoms, the company shall report promptly to the nearby virus control authority or send the employee to the designated medical institutes.
   
To collect relevant information of the employees, such as the locations where the employees spent their holidays; whether the employees and/or their relatives have been to Wuhan recently; and whether the employees were in close contact with any coronavirus patients, pathogen carriers or suspected patients during the holidays; whether the employees had fever or cough recently or not, etc. If any employee is found to be a close contact, the company may wish to ask the employee to do isolation at home for a period of 14 days.
   
To approve the employees suffering from coronavirus to take sick leave during the medical treatment period, and allow the employees who are suspected patients or close contacts and the employees who are not able to return to work because of the isolation measures or other emergency measures taken by the government (such as lock down of cities) to stay at home during the medical observation period or the other above mentioned period (jointly the “Lock out Period”).
   
Based on the nature and transmission of the coronavirus, during the epidemic period, the companies may wish to adopt protective measures for the employees at work such as measuring body temperature, providing masks, medicinal alcohol and other preventive equipment for employees and disinfecting the offices regularly. If any employee is found to be a suspected patient or close contact, the company shall take actions promptly.

Treatment of the employees not returning to work because of the coronavirus

According to the Notice on Properly Handling Labor Relationships during the Prevention and Control of Pneumonia Epidemic of New Coronavirus Infection issued by the PRC Ministry of Human Resources and Social Security on 24 January, 2020 as well as the local regulations issued until 30 January 2020, in some major provinces such as Beijing, Shanghai, Jiangsu, Guangdong and Zhejiang, employees suffering from coronavirus, or being suspected patients or close contacts and employees who are not able to be back to work because of the isolation measures or other emergency measures taken by the government enjoy the following treatments during the medical treatment period, medical observation period and the Lock out Period as follows:

The employees’ employment contracts shall not be terminated due to the reasons of illness, incompetence, the change of objective circumstances or mass lay-off. If their employment contract expires during the medical treatment period, medical observation period or Lock out Period, the expiring date shall be automatically extended until the expiration of such medical treatment period, medical observation period or Locked out Period.
   
The employees shall be paid salaries during the medical treatment period, medical observation period or Lock out Period. But the salary standards at different locations are different.

  Beijing Guangdong/Zhejiang Shanghai/ Jiangsu
Patients Sick leave salary Normal salary Normal salary
Suspected Patients/Close Contacts Normal salary Normal salary Normal salary
Quarantined
and locked out Employees
Arranging for taking annual leave first, and then if the Lock out Period is long, the company may consult with the employee about suspension of work and only pay the living allowance of 70% of the minimum wage.  (employees on business trip shall be excluded) Normal salary; the company may consult with the employee about taking annual leave during this period. Normal salary; whether the company can arrange the annual leave during this period is not expressly provided. However, we consider this should be possible.

Attention

In order to get information on the health situation of the employees, the companies may need to collect the private information of the employees. Legally speaking, the company is entitled to do so because such information is directly related to the performance of the employment contract of employees. But the company is obliged to keep the information confidential and shall not share it with any third party without the consent of the employee.

During the epidemic period, companies may consider to arrange employees who are suspended or close contacts or employees who are not able to be back to work because of the isolation measures or other emergency measures taken by the government (except if they take annual leave) to work from home during the medical observation period and the Locked out Period. Legally speaking, the company is not obliged to pay overtime payments, except if the government expressly requires so.

Until now, the situation arising from the coronavirus is still developing. When the measures for virus prevention and control can be removed is fully subject to the decision of the PRC government. Until then, companies are obliged to take proper safety management and preventive measures to fight against the disease. With the development and change of the epidemic, companies shall pay close attention to government announcements or notices and be prepared for any further measure or action.

In case you have any questions or need further information, please contact the authors:

CMS Jeanette Yu
Partner
Head of Employment & Pension Practice Area Group
CMS, China

T +86 21 6289 6363
E jeanette.yu@cmslegal.cn
CMS

Ada Hua
Junior Associate
CMS, China



T +86 21 6289 6363
E ada.hua@cmslegal.cn

 


This information is provided for general information purposes only and does not constitute legal or professional advice. Copyright by CMS, China.

CMS, China
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