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Things You Want to Know About the Delay of Work Resumption Duo to Coronavius Outbreak Concerning Labor Relationship

Time:2020-02-04 Hit:191
Things You Want to Know About the Delay of Work Resumption Duo to Coronavius Outbreak Concerning Labor Relationship  
The extended holiday (January 31st - February 9th)
We would like to take the period between January 31th and February 9th as extended holiday for the purpose of easier explanation  
1.It’s generally accepted that the extended holiday shall be recognized as “rest days” and the employer shall not deduct any salary as this is exactly the situation where the “employee is unable to work normally as a result of government quarantine measures or other emergency measures” as mentioned in the notice issued by the Ministry of Human Resources and Social Security on Improving the Handling of Issues in Labor Relationships During the Period for Protection and Control of Pneumonia from the Novel Coronavirus Infection.
Shanghai Labor Bureau clarified that the extended holiday shall be recognized as “rest days” and if an employer asks its employees to work, including working from home, overtime shall be paid during the extended holiday.  
However, Guangdong Labor Bureau fails to make it clear whether the whole period of the extended holiday shall be recognized as “rest days” in its notice issued on January 30th as it seems saying that only February 8th  and February 9th, as weekends, are qualified for overtime pay for employees working during the extended holiday. 

2. The employer shall not force its employees to work in the office during the extended holiday
Unless the related company is a company exempted from the extended holiday such as companies of water supply, electricity supply, supermarkets or any other similar companies for people’s livelihood, the employer shall not force its employees to go back to work before the expiration of the extended holiday.
Companies are encouraged to arrange its employees to work from home with overtime pay during the extended holiday in Shanghai.

3.The employer shall not force its employees to take annual leave during the extended holiday
(1)Shanghai expressly forbids employers to arrange annual leave to be used during the extended holiday 
(2)Provinces such as Guangdong and Zhejiang allow the employer to arrange annual leave for employees who are unable to go back to work upon the consent of the employee
We believe it’s illegal to force employees to consume their annual leave during the extended holiday, according to Article 2 of Regulation of Paid Annual Leave of Employee:  “national holidays and rest days shall not be counted against annual leave”, therefore, it is not right to force employees to take annual leave during “rest days”.
Although it’s unclear whether the related notices issued by Provinces, such as Guangdong, Zhejiang, and Henan are referring to any period after the extended holiday or not regarding the arrangement of annual leave, but we share the same opinion with Shanghai that the employer shall not use the extended holiday to deduct any existing annual leave of its employee.

Business Shutdown due to the Coronavirus outbreak 
For the first month:  
If the employee is paid monthly, the employee shall be paid as usual according to his or her labor contract in the first month
From the second month
1. Minimum salary per local standard shall be paid during the shutdown if work is provided ;
2. Living allowances shall be paid even no work is provided. Living allowance might be defined as a certain percentage such as 70% or 80% of the minimum local salary per local standard; 
Also, the employer may negotiate with employees to reach an agreement for adjusting salaries, work rotations, reducing work hours if it runs into difficulties of its business due to the impact of the epidemic. 
As this is a new situation in China history, different provinces may have different interpretations regarding the implementation of government policies. We are glad to share with you of our thoughts, but also be aware that it’s possible that local court may hold a different opinion. 
Author: Steve Li 

shanghai attorney