Lockdown Guidelines for Employers

By Carol Zhu and Yinbing Chen

Employers may negotiate with the candidates to postpone the reporting date until the pandemic is eased and lockdown measures are lifted. For candidates who are urgently needed by employers to get onboard and perform work duties, we would advise the employers to set up a special channel to confirm employment terms and establish employment relation with the candidates through online and email communication.

According to the Circular on Joint Issuance of the First Batch of Typical Labor Dispute Cases (the “Typical Cases”) of the Ministry of Human Resources and Social Security and the Supreme People’s Court, the parties to civil contracts can apply force majeure clauses in accordance with the law if they are affected by the pandemic, however, force majeure clauses are not applicable to parties of the employment contracts, and performance of employment contracts shall not be suspended due to the pandemic.

The Employment Contract Law stipulates that the same employer and the same employee can only agree, one time, on probationary period. If employers are unable to conduct assessment of the employees’ performance during probationary period due to the pandemic, we would suggest employers negotiate with the employees and achieve mutual agreement on suspension of probationary period. There may be potential legal risks for employers if they unilaterally decide to suspend employees’ probationary period.

According to the circular issued by the Ministry of Human Resources and Social Security, for those employees who are patients or suspected patients infected with COVID-19 and their close contacts that cannot provide normal work during the period of medical treatment in isolation, medical observation, and government’s implementation of isolation measures or other emergency measures, their employers shall pay remuneration to these employees for this kind of period. If employment contracts expire during such period, the employment contracts shall be respectively extended to the expiration of the medical treatment period, expiration of the medical observation period, expiration of the isolation period, or the end of emergency measures taken by the government.

If employers arrange employees to work from home, such employees should be paid the normal salary. If it is impossible to arrange employees to work from home, the employers may notify the employees in advance to use their annual leaves or decide to apply relevant provisions regarding suspension of operation for such employees.

Where employers decide to apply suspension of operation for employees, within one salary payment cycle, the employers shall pay the salary to the employees based on the standard stipulated in the employment contracts; after one salary payment cycle, if employees do not provide normal work, then employees shall be paid the living expenses. The standard of living expenses shall be determined by the local regulation of different provinces or cities. Taking Shanghai as an example, the living expenses shall be no lower than the minimum wage standard in Shanghai.

According to the Typical Cases, if the employer implements the system of paying salary on a monthly basis, then the salary payment cycle should be one month. For example, if the suspension of operation starts from March 28, then the first salary payment cycle shall be from March 28 to April 27.

According to the Interim Provisions on Salary Payment, if an employee participates in social activities during his or her statutory working hours in accordance with the law, the employee shall be viewed as having provided normal work and the employer shall correspondingly pay salary to the employee. However, the provision of volunteer service in the community is based on a voluntary principle, which is different in nature from the social activities described in the Interim Provisions on Salary Payment. Therefore, if an employee participates in community volunteer service, there is no legal basis for such an employee to request the normal salary from the employer by relying on this reason.

According to the Employment Contract Law, employers are obliged to provide labor protection and labor conditions for employees in accordance with the employment contracts. When employees work from home, their employers may not be able to fully assess the employees’ working environment at home. To mitigate potential legal risks, it is advisable for the employers to obtain employees’ written confirmation that their home environment is suitable for conducting the required work.

From April 11, 2022, all areas of Shanghai have adopted differentiated management by identifying the “closed area”, “controlled area” and “precautionary area”. After employees report to their employers about which area they belong to, if an employer has any doubt about the employee’s situation, the employer may request the employee to provide supporting documents, such as a written certificate issued by the community or neighborhood committee regarding the employee’s residential status and closed period of the area concerned.

If employers arrange employees to work from home due to the pandemic, after the pandemic control measures are lifted, the employers have the right to request the employees to resume work at the original workplace. If an employee refuses without justifiable reasons, the employer has the right to take disciplinary action against the employee in accordance with the rules and policies.