【Introduction】

At present, the situation of the new crown pneumonia epidemic in the Greater Bay Area is extremely severe. According to relevant reports, as of March 2, 2022, Hong Kong has confirmed up to 55,353 new cases, Shenzhen has confirmed 25 new cases, in order to protect the health of the general public, the Shenzhen Municipal Government, the Municipal Party Committee has been how to prevent and control the epidemic as the primary task and goal, some areas have taken "only in and out" and other closed and tough measures. We salute the retrogrades, resolutely obey the government's arrangements, and actively participate in the prevention and control of the epidemic. In order to reduce the gathering of people, prevent the risk of the spread of the epidemic, and ensure the personal safety of everyone, the government has repeatedly called on everyone to actively do a good job in epidemic prevention and control, and work together to overcome difficulties.

During the epidemic prevention and control period, 45 employee relations practice answers related to the epidemic | Zenith Service Outsourcing

Under the new situation of the epidemic, there have been many employee relationship problems related to human resources of enterprises. When handling epidemic-related labor disputes, while guiding employers and workers to share responsibilities and tide over difficulties, we must also consider the personal subordination and dependency characteristics of labor relations, and handle labor disputes in accordance with the dimensions conducive to building harmonious labor relations.

During the epidemic prevention and control period, 45 practical answers to the epidemic-related employee relations were shared with you.

01.

The residential area is designated as a sealing area, a control area, and a prevention area, resulting in employees not being able to work normally, and does the enterprise have to pay wages?

A: According to the provisions of the Notice of the Headquarters for the Prevention and Control of the Novel Coronavirus Pneumonia Epidemic in Futian District of Shenzhen (No. 14), according to the needs of the epidemic prevention and control work, since February 28, 2022, Futian District has demarcated the sealing and control area, control area and prevention area in Futian Street, Shatou Street, Meilin Street, Xiangmihu Street and Lotus Street, and implemented different measures in different areas, among which the sealing and control area implements "regional closure, staying at home, door-to-door service"; the control area implements "people do not leave the district, it is strictly forbidden to gather"; and the prevention area is implemented "Strengthen social management and strictly restrict the gathering of personnel." In fact, some control areas and prevention areas actually implement the measure of "only entering and not leaving", so that residents in the above areas are not allowed to leave the corresponding areas after entering, resulting in the inability to work in the unit.

Shanshi believes that the above situations are all situations in which the employer stops work or stops production not due to employee reasons, and should be treated as a work stoppage, and the employer shall pay living expenses according to law.

According to Article 35 of the Regulations on Wage Payment of Guangdong Province, "if the employer stops work or production for reasons other than the employee, and does not exceed a wage payment period (up to 30 days), the employer shall pay the wages in accordance with the normal working hours." If there is more than one wage payment cycle, the wage may be paid according to the standard newly agreed upon by the two parties according to the labor provided by the worker; if the employer does not arrange for the worker to work, the worker shall pay the living expenses of the employee at not less than 80% of the local minimum wage standard, and the living expenses shall be paid to the enterprise to resume work, resume production or terminate the labor relationship. ”

Article 28 of the Regulations on the Payment of Wages of Employees of Shenzhen stipulates: "If the employer stops work or production due to reasons other than the employee, and does not exceed one wage payment period (up to 30 days), the employer shall pay the wages in accordance with the normal working hours." If there is more than one wage payment cycle, the wage may be paid according to the standard newly agreed upon by the two parties according to the labor provided by the employee; if the employer does not arrange for the employee to work, the employee shall pay the living expenses of the employee at a rate of not less than 80% of the local minimum wage standard, and the living expenses shall be paid until the enterprise resumes work, resumes production or terminates the labor relationship. ”

Therefore, the residential area is divided into a sealing and control area, a control area, and a prevention area, resulting in employees not being able to work normally, and the enterprise should pay living expenses.

Can an employer refuse an employee who has been ill to return to work?

A: Not if the employee has been cured or has been ruled out of the suspicion of infectious diseases.

This kind of behavior is an employment discrimination and violates the law. Article 16 of the Law of the People's Republic of China on the Prevention and Control of Infectious Diseases stipulates that "no unit or individual may discriminate against patients with infectious diseases, pathogen carriers or patients with suspected infectious diseases." Article 3 of the Labor Law of the People's Republic of China stipulates that "workers enjoy the right to equal employment and choice of occupation, the right to obtain labor remuneration, the right to rest and leave, the right to obtain labor safety and health protection, the right to vocational ability training, the right to enjoy social insurance and welfare, the right to submit labor disputes for settlement, and other labor rights prescribed by law." ”

If an office building is classified as a closed area due to the impact of the epidemic, can employees be arranged to work remotely from home?

A: Yes.

At present, the epidemic situation in Shenzhen is grim, some office buildings are classified into the sealing and control area, some work can be completed at home, employees can be arranged to complete at home, and workers must not refuse. The labor relationship between labor and management has been established, the employee has a personality subordination and personal dependence on the employer, the employer has the autonomy of employment and the right to operate and manage, and the employee shall obey the management of employment. Otherwise, the employer has the right to punish him.

If an enterprise allows an employee to work from home and the employee refuses to provide labor at home, can the employer not pay the labor remuneration or even terminate the labor contract?

Article 46 of the Labor Law stipulates that "the distribution of wages shall follow the principle of distribution according to work and implement equal remuneration for equal work", that is, the law stipulates that labor remuneration shall be distributed according to work, employees do not provide work, the employer may not pay labor remuneration, and the employer may also terminate the labor contract on the grounds of serious violation of labor discipline and rules and regulations. Article 9 of the Regulations on the Promotion of Harmonious Labor Relations in the Shenzhen Special Economic Zone stipulates: "It is the legal obligation of the employee to perform the following obligations in accordance with the law: (1) to work diligently and complete the labor tasks; (2) to abide by the rules and regulations formulated by the employer in accordance with the law; ..." Therefore, it is the statutory duty of the employee to abide by the rules and regulations formulated by the employer in accordance with the law and to abide by the labor tasks.

If an employee refuses to provide labor at home, the employer has the right not to pay labor remuneration because it has not provided labor and there is no justifiable reason. In addition, the employer may also terminate the labor contract in accordance with the provisions of Article 25 of the Labor Law and Article 39 of the Labor Contract Law.

Article 25 of the Labor Law stipulates: "The employer may terminate the labor contract if the employee has any of the following circumstances: ... Article 39 of the Labor Contract Law stipulates: "The Employer may terminate the labor contract in any of the following circumstances: ... (2) Seriously violating the rules and regulations of the Employer; ”

Can some employees be arranged to work remotely from home, and some employees can be suspended according to work stoppage?

The employment autonomy of the employer is not illegal, but it is recommended to put people first, take into account the principle of fairness and reasonableness, and do not use this as the basis for punishing employees.

Because of the epidemic, enterprises produce materials urgently needed due to the epidemic, can employees refuse to work overtime?

A: Employees cannot refuse.

Article 42 of the Labor Law stipulates that "in any of the following circumstances, the extension of working hours shall not be subject to the restrictions provided for in Article 41 of this Law: (1) the occurrence of natural disasters, accidents or other reasons that threaten the safety of workers' lives, health and property, and need urgent handling; (2) production equipment, transportation routes, or public facilities fail, affecting production and the public interest, and must be repaired in a timely manner; (3) other circumstances provided for by laws and administrative regulations." ”

Article 7 of the Measures for the Implementation of the Provisions of the State Council on the Working Hours of Employees (Ministry of Labor and Ministry of Personnel, Order No. 146, 1994) stipulates that "under normal circumstances, each unit shall not arrange for employees to work overtime." The following exceptions are made: (1) where work cannot be interrupted during statutory holidays and public holidays, and continuous production, transportation or business must be carried out; (2) equipment maintenance and maintenance must be carried out during the suspension period of statutory holidays or public holidays; (3) due to temporary malfunctions in production equipment, transportation routes, public facilities, etc., and must be repaired urgently; (4) due to the occurrence of serious natural disasters or other disasters, the safety and health of the people and state assets are seriously threatened, and it is necessary to rescue them ;(5) For the purpose of completing national defense emergency production tasks, or other emergency production tasks arranged by higher levels outside the state plan, as well as commercial and supply and marketing enterprises completing urgent tasks of purchasing, transporting, and processing agricultural and sideline products during the peak season. ”

After the sealing and control area, the control area, and the prevention area are lifted, if the employee refuses to return to work, can the enterprise deal with the violation of discipline in the work of the employee?

A: Yes. After the sealing area, control area, and prevention area are lifted, unless there is a legitimate reason, such as being diagnosed with infection, or being sent by the government to a designated area for compulsory isolation, etc., employees may not refuse the legitimate request of the enterprise to return to work. Otherwise, the enterprise has the right to deal with it in accordance with the rules and regulations it has formulated in accordance with the law, including the termination of the labor contract.

Can employees refuse to go to the sealing area and control area on the grounds that they are worried about being infected with the virus?

A: If the government does not announce the lifting of mandatory prevention and control measures for the sealing and control areas, the general employees have the right to refuse. If the government has lifted the relevant prevention and control measures, employees must not refuse.

The labor relationship has the basic attribute of personal dependence, and the employee shall abide by the arrangements of the employer when providing labor to the employer, and unless there are special circumstances or there is an exception in the labor contract, the employee shall obey the employer's travel arrangement. After the government lifts the relevant prevention and control measures, employees should obey the travel arrangements.

Article 9 of the Regulations on the Promotion of Harmonious Labor Relations in the Shenzhen Special Economic Zone stipulates: "Workers shall perform the following obligations in accordance with the law: (1) work diligently and complete labor tasks;

(2) Abide by the rules and regulations formulated by the Employer in accordance with the law; ..."Therefore, it is the statutory obligation of the employee to abide by the rules and regulations formulated by the Employer in accordance with the law and to fulfill the labor tasks.

What should I do if an employee refuses to go to work for fear of contracting an illness?

A: After the mandatory epidemic prevention measures have been lifted in the area where the enterprise is located, employees must not refuse to work on the grounds that they are worried about infection.

The labor relationship has the basic attribute of personal dependence, and the employee shall abide by the employment arrangement of the employer when providing labor to the employer, and unless there are special circumstances or there is an exclusion in the labor contract, the employee shall obey the work arrangement of the employer. After the expiration of the delayed resumption of work stipulated by the government, if there are no special circumstances, the employee shall attend work normally, otherwise he shall bear the corresponding legal responsibility.

Enterprises can deal with different situations according to the actual situation of enterprises and employees. If the employee does not intentionally absent from work, the employee can be arranged for annual leave or personal leave, or the employee can be arranged to wait for work through negotiation, suspension of labor relations, etc., and sign a corresponding agreement to confirm the rights and obligations of both parties, and can also guide the employee to resign or negotiate to terminate the labor contract. If the employee is unwilling to cooperate, it can be dealt with in accordance with the rules and regulations and labor discipline, such as disobedience to work arrangements or absenteeism.

After an employee is diagnosed with a novel coronavirus infection, how should the employer deal with it?

A: If an employee is diagnosed or suspected of being infected with the novel coronavirus, the enterprise unit shall not arrange for him to work and arrange for him to take sick leave. Article 9 of the Law on the Prevention and Control of Infectious Diseases stipulates that "the State supports and encourages units and individuals to participate in the prevention and control of infectious diseases", and the second paragraph of article 16 stipulates: "Patients with infectious diseases, pathogen carriers and patients with suspected infectious diseases shall not engage in work that is easy to spread the infectious disease that is prohibited by laws, administrative regulations and the provisions of the administrative department of health under the State Council before they are cured or before the suspicion of infectious diseases is eliminated." ”

According to the epidemic situation, the employer formulates relevant sanitation systems such as disinfection, and does the employee have to comply with them?

A: Labor relations have the basic attribute of personal dependence, and employees must accept the reasonable arrangements of the enterprise. If the health system of the enterprise system does not violate the provisions of the law, is reasonable and does not harm the rights and interests of the employee, the employee must comply, otherwise the employer may deal with the employee in violation of labor discipline and rules and regulations.

Is it illegal to arrange overtime for more overtime than required by law due to the needs of the epidemic?

A: Not illegal.

According to the provisions of Article 42 of the Labor Law, the extension of working hours shall not be subject to the restrictions provided for in Article 41 of this Law in any of the following circumstances: (1) natural disasters, accidents or other reasons that threaten the safety of workers' lives, health and property, and need to be dealt with urgently; (2) production equipment, transportation routes, or public facilities fail, affecting production and the public interest, and must be repaired in a timely manner; (3) other circumstances provided for by laws and administrative regulations.

Due to the impact of the epidemic, employees are isolated at home, does the employer have the right to unilaterally arrange for employees to take paid annual leave?

A: Yes, but be careful to go through a negotiation process.

On July 10, 2020, the Ministry of Human Resources and Social Security and the Supreme People's Court issued a Notice on Jointly Issuing the First Batch of Typical Cases of Labor and Personnel Disputes [Letter [2020] No. 62 of the Ministry of Human Resources and Social Security, of which Case 6 talked about this issue. The Ministry of Human Resources and Social Security and the Supreme People's Court held that the first paragraph of article 5 of the Regulations on Paid Annual Leave for Employees stipulates: "Units shall make overall arrangements for the annual leave of employees in accordance with the specific conditions of production and work, and taking into account the wishes of the employees themselves." Article 9 of the Measures for the Implementation of Paid Annual Leave for Employees of Enterprises stipulates: "Employers shall make overall arrangements for annual leave in accordance with the specific conditions of production and work, and consider the wishes of the employees themselves." The Opinions of the Ministry of Human Resources and Social Security and other four departments on Stabilizing Labor Relations During the Prevention and Control of the Novel Coronavirus Infection Pneumonia Epidemic and Supporting Enterprises to Resume Work and Production (issued by the Ministry of Human Resources and Social Security [2020] No. 8, hereinafter referred to as Document No. 8) stipulates: "For enterprises that do not have the conditions for remote work, consultation with employees will give priority to the use of paid annual leave, enterprise-owned welfare leave and other types of leave." It can be seen from the above provisions that the employer has the right to make overall arrangements for the paid annual leave of the employee, and consultation with the employee is a procedure to be performed by the employer, but it does not require "consensus". Regardless of whether the employee agrees or not, the enterprise can make overall arrangements for paid annual leave after performing the negotiation procedure.

According to the Ministry of Human Resources and Social Security and the Supreme People's Court, "Document No. 8 clearly guides enterprises and workers to give priority to the use of paid annual leave, enterprise-owned welfare leave and other types of leave, so as to minimize the loss of the new crown pneumonia epidemic to business operations and workers' income." When arranging for employees to give priority to the use of paid annual leave during the delay in resuming work and production, the enterprise shall try its best to consider the actual situation of the employee, perform the consultation procedures in accordance with the law, and pay the paid annual leave wage in accordance with the law; the employee shall accurately understand the laws and policy provisions and actively accept the arrangement of the employer. ”

Annual leave originates from the law and belongs to the right of employees to rest and leave, the purpose of which is to protect the right of workers to rest and leave.

Shanshi believes that due to the impact of the new coronavirus epidemic, the Shenzhen Municipal People's Government has designated some areas such as Futian, Nanshan and Luohu as sealing and control areas, control areas and prevention areas, resulting in some employees isolating at home, at this time, enterprises can arrange employees to take annual leave according to law according to the actual situation.

Article 5 of the Regulations on Paid Annual Leave for Employees stipulates: "The unit shall make overall arrangements for the annual leave of employees according to the specific conditions of production and work, and consider the wishes of the employees themselves." Annual leave can be arranged centrally or in stages within one year, and generally does not make arrangements across years. If it is really necessary for the unit to arrange annual leave for employees across the year due to the characteristics of production and work, it may arrange it across 1 year. ”

Therefore, during the prevention and control of the new coronavirus epidemic, in order to actively respond to the call of the state, strengthen the prevention and control of the pneumonia epidemic caused by the new coronavirus infection, effectively reduce the gathering of personnel, block the spread of the epidemic, and better protect the life safety and physical health of employees, employers can arrange annual leave for employees for the period before the resumption of work stipulated by the local government according to the specific conditions of production and work of the unit and comprehensive consideration of the employees' own wishes.

It should be noted that employees enjoy the same wage income during annual leave as during normal working hours.

Therefore, considering the far-reaching impact of the epidemic on enterprises, it is not easy for enterprises to feel that it is not easy for enterprises, so for employers, if they arrange for employees to take annual leave, it is reasonable and the legal risk is small.

During the prevention and control of the novel coronavirus epidemic, if employees are arranged to take annual leave, can the national statutory holiday days and rest days be counted as annual leave?

A: No. The law stipulates that the statutory holiday days and rest days of the state are not counted as holidays for annual leave.

During the epidemic prevention and control period, how to calculate the annual leave of employees, how to calculate the salary?

A: Wages are based on normal working hours.

What is a normal working hours wage? According to Article 4 of the Regulations on the Payment of Wages of Employees in Shenzhen, "Normal working hours wages refer to the labor remuneration that employees should receive for normal labor to the employer during normal working hours." Normal working hours wages do not include overtime wages, subsidies under special working conditions such as middle shift, night shift, high temperature, low temperature, underground, toxic and harmful, and other expenses that are not wages according to regulations. ”

Can employees in the sealing and control areas be notified of unpaid personal leave to rest?

A: No, you can't.

The employer unilaterally notifies the sealing and control area to take unpaid personal leave, and forces the employee to write a leave application to avoid the obligation to pay wages or living expenses, which is invalid. Article 26 of the Labor Contract Law stipulates: "The following labor contracts are invalid or partially invalid: (1) using fraudulent or coercive means or taking advantage of the danger of others to cause the other party to conclude or modify the labor contract against its true intentions; (2) the employer exempts itself from statutory responsibility and excludes the rights of employees; (3) violates the mandatory provisions of laws and administrative regulations." ”

Shanshi believes that the employer's taking unpaid leave from employees in the sealing and control area and the control area through unilateral notification is an act of "exempting oneself from statutory responsibilities and excluding the rights of employees" and "violating the mandatory provisions of laws and administrative regulations", so it is an invalid act.

When employees in the sealing and control areas or control areas cannot work normally, the employees may be allowed to take unpaid personal leave after the two sides reach a consensus or after the employees apply for them.

After the end of the emergency measures taken by the government to control the epidemic, if the employees of the enterprise continue to recuperate at home due to illness, how should the employer deal with it?

A: If the employee needs to continue to recuperate at home after the expiration of the medical observation period, the expiration of the isolation period or the end of the emergency measures taken by the government, if the employee can provide a certificate of sick leave, according to the sick leave recommendation of the medical institution, the employee can enjoy a sick leave salary of not less than 80% of the minimum wage during the medical period.

After the end of the emergency measures taken by the government to control the epidemic, if the employees of the enterprise do not have a sick leave certificate, but continue to recuperate at home, how should the employer deal with it?

A: In view of this situation, employees can be guided to take annual leave or personal leave, and they can also negotiate with employees to stay at work and suspend labor relations. If the employee has the ability and conditions for normal work and refuses to return to work, the company may deal with it in accordance with legal and effective rules and regulations, including dismissal.

How is the number of work stoppage days resulting from the epidemic control overlapping with the maternity leave of the third period of female employees, how is the leave calculated?

A: Maternity leave for female employees of the third period should be calculated on a priority basis.

Employers shall protect the lawful rights and interests of female employees in accordance with Article 7 of the Special Provisions on the Labor Protection of Female Employees and other relevant provisions. Article 7 of the Special Provisions on the Labor Protection of Female Employees stipulates: "Female employees enjoy 98 days of maternity leave, of which 15 days of leave before childbirth; in the case of difficult childbirth, the maternity leave is increased by 15 days; in the case of multiple births, for every additional baby, the maternity leave is increased by 15 days." Female employees who have a miscarriage within 4 months of pregnancy shall enjoy 15 days of maternity leave, and those who have miscarried after 4 months of pregnancy shall enjoy 42 days of maternity leave. ”

In addition to the above-mentioned holidays, female employees in Shenzhen should also enjoy 80 days of incentive leave in Guangdong Province.

Casually popularized, Shenzhen female employees who are the first single child can enjoy a total of 178 days of maternity leave, and female employees who are second-born single birth can enjoy a total of 178 days of maternity leave. According to Article 11 of the Measures of Guangdong Province for the Implementation of the Special Provisions on the Labor Protection of Female Employees, the maternity leave of female employees in Shenzhen is stipulated as follows: Female employees enjoy 98 days of maternity leave, of which 15 days can be taken before childbirth; if multiple babies are born, for every additional baby, the maternity leave is increased by 15 days. The Regulations of Guangdong Province on Population and Family Planning stipulate that women enjoy 80 days of incentive leave. According to Article 16 of the Provisions on Maternity Insurance for Employees of Guangdong Province and Article 6 of the Interim Provisions on the Welfare Of Employees of Enterprises in Guangdong Province on The Benefits of Death pensions for employees on leave of leave, if it is difficult to give birth, the maternity leave shall be increased by 30 days.

Can the employer refuse to hire or even terminate the labor contract of a worker who has been quarantined or infected?

Article 16 of the Law of the People's Republic of China on the Prevention and Control of Infectious Diseases stipulates that "no unit or individual may discriminate against patients with infectious diseases, pathogen carriers or patients with suspected infectious diseases." Article 3 of the Labor Law of the People's Republic of China stipulates that "workers enjoy the right to equal employment and choice of occupation, the right to obtain labor remuneration, the right to rest and leave, the right to obtain labor safety and health protection, the right to vocational ability training, the right to enjoy social insurance and welfare, the right to submit labor disputes for settlement, and other labor rights prescribed by law." ”

If an enterprise finds that an employee has been diagnosed with an illness, can it terminate the labor contract?

A: It is not recommended to dismiss employees immediately, otherwise it may constitute an illegal dismissal.

If an enterprise discovers that an employee is infected with an illness and the employee is an employee during the medical treatment period, Article 42 of the Labor Contract Law stipulates: "If the employee has any of the following circumstances, the employer shall not terminate the labor contract in accordance with the provisions of Articles 40 and 41 of this Law... (3) Illness or non-work-related injury, within the prescribed medical treatment period", it should be noted that it is not absolutely impossible to dismiss. If there are circumstances provided for in Article 39 of the Labor Contract Law, that is, "(1) during the probationary period is proved to not meet the employment requirements; (2) serious violations of the rules and regulations of the employer; (3) serious dereliction of duty, fraud for personal gain, causing major damage to the employer; (4) the employee establishes labor relations with other employers at the same time, causing a serious impact on the completion of the work tasks of the unit, or refuses to make corrections after the employer proposes it." ;(5) The labor contract is invalid due to the circumstances provided for in item 1 of the first paragraph of Article 26 of this Law; (6) the employer may still terminate the labor contract if it is pursued for criminal liability in accordance with law"

It should be noted that if the employee refuses to receive treatment after being diagnosed, and the virus spreads, which constitutes a crime, the employer may terminate the labor contract on the grounds that the employee has committed a crime in Article 39 of the Labor Contract Law.

If the labor contract expires during the period of isolation and treatment of the employee or during the period of medical observation, the government implementing isolation measures or other emergency measures, can the enterprise terminate the labor contract on the grounds that the contract expires? What should I do?

A: No, the employment contract is automatically renewed.

The Notice of the General Office of the Ministry of Human Resources and Social Security on Properly Handling Labor Relations Issues During the Prevention and Control of the Novel Coronavirus Pneumonia Epidemic stipulates that "for pneumonia patients, suspected patients, and close contacts infected with the new coronavirus during their isolation treatment or medical observation period, as well as employees of enterprises who are unable to provide normal labor due to the implementation of isolation measures or other emergency measures by the government ... During this period, if the labor contract expires, it shall be extended to the expiration of the employee's medical period, the expiration of the medical observation period, the expiration of the isolation period, or the end of the emergency measures taken by the government. ”

Can an employer terminate the employment contract of a pneumonia patient, suspected patient or close contact of the novel coronavirus who is infected with the novel coronavirus during the period of isolation treatment or medical observation, as well as during the period of isolation or medical observation, and who cannot provide normal labor due to the government's implementation of isolation measures or other emergency measures?

The Notice of the General Office of the Ministry of Human Resources and Social Security on Properly Handling Labor Relations Issues During the Prevention and Control of the Novel Coronavirus Pneumonia Epidemic stipulates that "for pneumonia patients, suspected patients and close contacts infected with the new coronavirus during their isolation treatment or medical observation period, as well as employees of enterprises that cannot provide normal labor due to the government's implementation of isolation measures or other emergency measures, the enterprise shall pay the employees for their work during this period, and shall not follow Article 40 of the Labor Contract Law. Article 41:Termination of labor contracts with employees. ”

Can the employer of labor dispatch return pneumonia patients, suspected patients and close contacts infected with the new coronavirus who are unable to provide normal labor during the period of isolation treatment or medical observation, as well as due to the government's implementation of isolation measures or other emergency measures, on the grounds that they are incompetent, that the situation has changed significantly at the time of the conclusion of the labor contract, or that there is a major change in the situation at the time of the conclusion of the labor contract, or that there is a economic layoff?

The Guangdong Provincial Department of Human Resources and Social Security clearly explained: "The employing unit shall not return the pneumonia patients, suspected patients, close contacts of the new coronavirus infection, or dispatched workers who cannot provide normal labor due to the government's isolation measures and other emergency measures to the labor dispatch unit under the circumstances provided for in Articles 40 and 41 of the Labor Contract Law." The wages and benefits of dispatched workers during the period of employment shall refer to the relevant policies of the employing unit for direct employment. ”

If an employee refuses to accept a nucleic acid test, can the employer punish or terminate the labor contract?

Answer: Whoever suffers from a sudden infectious disease or a suspected sudden infectious disease and refuses to accept quarantine, compulsory isolation or treatment, and negligently causes the spread of an infectious disease, the circumstances are serious and endangers public safety, shall be convicted of the crime of endangering public security by dangerous means by negligence in accordance with the provisions of the Criminal Law and shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years; if the circumstances are less serious, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention.

Where units or individuals violate regulations, causing the spread or epidemic of infectious diseases and causing damage to the person or property of others, they shall bear civil liability in accordance with law.

If an employee of a unit is investigated for criminal liability in accordance with the law, the employer may immediately terminate the labor contract in accordance with the provisions of Article 39, Paragraph 6 of the Labor Contract Law, and shall not have to pay economic compensation.

If an employee of a unit is not investigated for criminal liability in accordance with the law, but obstructs the epidemic prevention work in the employer's workplace and seriously violates the rules and regulations of the employer, the employer may also terminate the labor contract immediately in accordance with the second paragraph of Article 39 of the Labor Contract Law and does not have to pay economic compensation. Even if the employer does not have clear rules and regulations, the employer may terminate the labor contract on the grounds that the employee has seriously violated labor discipline in accordance with the provisions of Article 25 of the Labor Law, but it should be noted that if the employee is obstructing the illegal act of epidemic prevention outside the workplace, but does not constitute a crime, the employer may terminate the labor contract on the grounds of violating the rules and regulations or labor discipline, which is extremely risky.

If an employee is diagnosed with a novel coronavirus infection but has been cured, how does the employer handle the performance of the labor contract?

A: It can be implemented in accordance with the relevant provisions of the notice of the former Ministry of Labor on Printing and Distributing several issues concerning the implementation of the < labor law of the People's Republic of China on several issues >. Article 23 of the Opinions stipulates: "If an employee who takes a long sick leave is able to engage in his or her original work after the expiration of the medical treatment period, he may continue to perform the labor contract; if he or she is still unable to perform the original job after the expiration of the medical treatment period and cannot engage in the work separately arranged by the unit, the labor appraisal committee shall conduct an appraisal of labor ability with reference to the appraisal standards for the degree of disability caused by work injuries and occupational diseases." Those who are appraised as grades one to four shall withdraw from the labor post, terminate the labor relationship, go through the formalities of retirement due to illness or non-work-related injury, and enjoy the corresponding retirement and retirement benefits; if they are appraised as level 5 to 10, the employer may terminate the labor contract and pay economic compensation and medical subsidies in accordance with regulations. ”

If after the expiration of the prescribed medical treatment period, the employer cannot engage in the original work, nor can it engage in the work arranged by the employer separately, it may be dealt with in accordance with the provisions of Article 40 of the Labor Contract Law, that is, "in any of the following circumstances, the employer may terminate the labor contract after notifying the employee in writing 30 days in advance or after paying the employee an additional month's wages: ... (1) The worker is ill or injured not due to work, and cannot perform the original job after the expiration of the prescribed medical treatment period, nor can he engage in the work arranged separately by the Employer. ”

If an employee suspects or is diagnosed with a novel coronavirus infection, can the employer require the employee to provide a medical examination certificate or rehabilitation certificate?

A: Yes.

When hiring an employee, or when an employee returns to work, the employer has the right to require the employee to provide a physical examination certificate or rehabilitation certificate in the case of suspected or confirmed novel coronavirus infection, and the employee shall provide it, otherwise, the employer has the right not to hire or deal with it in accordance with the rules and regulations.

Article 8 of the Employment Contract Law stipulates: "... The employer has the right to understand the basic information directly related to the labor contract of the employee, and the employee shall truthfully explain it. Article 9 of the Law on the Prevention and Control of Infectious Diseases stipulates that "the State supports and encourages units and individuals to participate in the prevention and control of infectious diseases", and the second paragraph of article 16 stipulates: "Patients with infectious diseases, pathogen carriers and patients with suspected infectious diseases shall not engage in work that is easy to cause the spread of infectious diseases that is prohibited by laws, administrative regulations and regulations of the administrative department of health under the State Council before they are cured or before the suspicion of infectious diseases is eliminated." ”

After an employee suspects or is confirmed to be infected with the new coronavirus, and deliberately conceals his illness to apply for employment, can the employer dismiss the employee on this ground after discovering it?

A: Dismissal is possible.

When employees themselves suspect or confirm the infection of the new coronavirus, they should comply with government regulations, actively accept treatment, and take preventive measures to avoid the expansion of the epidemic situation in accordance with the Law on the Prevention and Control of Infectious Diseases and relevant laws and regulations. If the applicant deliberately conceals the illness and is successfully employed, the employer may dismiss the employee on this ground after discovery, and will not pay any economic compensation or compensation, but if the employee provides normal labor, the corresponding labor remuneration shall be settled.

Article 39 of the Labor Contract Law stipulates: "The employer may terminate the labor contract if the employee has any of the following circumstances: (1) It is proved that the employment requirements are not met during the probationary period. ......”

During the period when an employee is suspected or confirmed to have COVID-19, can the employer terminate the labor contract?

A: No, otherwise it may constitute an unlawful dismissal.

Article 29 of the Labor Law stipulates: "In any of the following circumstances, the employer shall not terminate the labor contract in accordance with the provisions of Articles 26 and 27 of this Law: ... (b) those who are sick or injured within the prescribed medical treatment period;"

Article 42 of the Labor Contract Law stipulates: "In any of the following circumstances, the employer shall not terminate the labor contract in accordance with the provisions of Articles 40 and 41 of this Law: (3) If the employee is ill or injured not due to work, and is within the prescribed medical treatment period;

Article 34 of the Opinions of the former Ministry of Labor on Several Issues Concerning the Implementation of the Labor Law of the People's Republic of China stipulates: "Except as provided for in Article 25 of the Labor Law, the employer shall not terminate the labor contract when the employee works during the medical, pregnancy, childbirth and lactation periods, and the term of the labor contract expires." The term of the employment contract shall automatically extend until the expiration of the medical, pregnancy, childbirth and lactation periods. ”

Therefore, according to Article 42 of the Labor Contract Law, an employee during the medical treatment period may not unilaterally terminate the labor contract unless the employee has seriously violated the rules and regulations of the Employer, seriously derelicts his duties, commits fraud for personal gain, causes major damage to the Employer, and is prosecuted for criminal liability according to law.

Can an employer terminate an employment contract on the grounds that the employee has been on sick leave for a long time due to suspected or confirmed COVID-19?

A: No. There is no legal basis.

If the employer unilaterally terminates the labor contract, the parties may initiate labor arbitration in accordance with the provisions of Article 48 of the Labor Contract Law, request the continuation of the labor contract and re-issue labor remuneration for the period from the termination of the labor contract to the arbitration or litigation, or require the employer to pay compensation for the illegal termination of the labor contract (equivalent to twice the economic compensation).

For employees who are in the medical treatment period due to suspected or confirmed COVID-19, can the employer absolutely not terminate the employment contract?

A: No.

For employees who are suspected or confirmed to be in the medical period of COVID-19, it is absolutely not impossible for the employer to dismiss them. The Employment Contract Law only clarifies that employers cannot carry out non-fault termination and economic layoffs during the medical treatment period, and does not stipulate that employers cannot carry out faulty termination (Article 39) and negotiated termination (Article 36). Therefore, for employees during the medical treatment period, the employer may terminate his or her labor contract on the grounds that his probationary period does not meet the employment conditions, there is serious disciplinary violation, or there is serious fault, or he may communicate with him or her and negotiate to terminate his labor contract on the premise of reaching an agreement on relevant matters such as payment of economic compensation.

If an employee deliberately conceals his illness and returns to work after the employee is suspected or confirmed to be infected with the new crown, causing serious consequences, can the employer dismiss the employee on this ground?

After an employee is suspected or confirmed to be infected with the new crown, the employee shall comply with government regulations, actively accept treatment, and take preventive measures to avoid the expansion of the epidemic situation in accordance with the Law on the Prevention and Control of Infectious Diseases and relevant laws and regulations. Regardless of the purpose of the employee, deliberately concealing his illness and returning to work, his or her behavior is not only an illegal act in itself, but is more likely to be suspected of a criminal offense. As far as the labor relationship is concerned, if his conduct violates the provisions of Article 39 of the Employment Contract Law, the employer has the right to dismiss the employee on the grounds that he or she has seriously violated the rules and regulations and will not pay any economic compensation or compensation.

Article 39 of the Labor Contract Law stipulates: "An employer may terminate a labor contract if an employee has any of the following circumstances: ... (2) Seriously violating the rules and regulations of the Employer. ”

If the contract expires during the period of isolation, observation or compulsory measures, can the employer notify the employee to terminate the contract?

A: No, it should be postponed until the expiration of the medical treatment period.

Article 42 of the Labor Contract Law stipulates: "An employer shall not terminate a labor contract in accordance with the provisions of Articles 40 and 41 of this Law if an employee has any of the following circumstances: ... (3) Sickness or injury not attributable to work, within the prescribed medical treatment period;

How to deal with the suspension of labor relations under the epidemic situation?

Article 30 of the Jiangsu Provincial Labor Contract Regulations stipulates that a labor contract may be suspended in any of the following circumstances: (1) through mutual agreement between the parties; (2) where the employee's personal freedom is restricted due to suspected violations and crimes; (3) the labor contract cannot be performed temporarily due to force majeure; and (4) other circumstances stipulated by laws and regulations. During the period of suspension of the labor contract, the labor relationship is retained, the performance of the labor contract is suspended, and the employer may stop paying social insurance premiums without paying labor remuneration. The period of suspension of the labor contract is not counted as the employee's working years in the employer. Where the circumstances of suspension of a labor contract have disappeared, performance shall be resumed, except where performance is no longer possible.

Is it a work injury for medical staff members who are infected due to work?

A: It is a work injury.

The Notice of the Ministry of Human Resources and Social Security, the Ministry of Finance, and the National Health Commission on The Relevant Protection Issues of Medical Care and Related Workers Infected with Novel Coronavirus Pneumonia due to the Performance of Work Duties (Letter [2020] No. 11 of the Ministry of Human Resources and Social Security) stipulates: "In the prevention and treatment of novel coronavirus pneumonia, medical care and related staff members who are infected with novel coronavirus pneumonia or die due to infection with novel coronavirus pneumonia due to the performance of their work duties shall be regarded as work injuries and enjoy the treatment of work injury insurance in accordance with law." ”

In the prevention and treatment of the new coronavirus pneumonia, how to pay the salary and treatment of medical care and related personnel who are infected with the virus due to the performance of their duties?

A: Article 33 of the Regulations on Work-related Injury Insurance stipulates: "If an employee suffers an accident injury at work or suffers from an occupational disease and needs to suspend work to receive work-related injury medical treatment, during the period of suspension of work and salary, the original salary and welfare benefits will not change, and the employer shall pay it on a monthly basis." ”

If you are sent to Shenzhen to work and get infected, is it a work injury?

If an employer appoints a worker to contract novel coronavirus pneumonia during a business trip to an epidemic area, is it considered a work injury?

A: It is regarded as a work injury.

Article 14 of the Regulations on Work-related Injury Insurance stipulates: "An employee shall be deemed to be injured in any of the following circumstances: (1) he or she is injured by an accident during working hours and in the workplace due to work; ... (5) Where the whereabouts of an accident are unknown due to work-related reasons while away from work; "Article 10 of the Regulations of Guangdong Province on Work-related Injury Insurance stipulates: "If a worker has any of the following circumstances, it shall be regarded as a work-related injury: ... (4) Being assigned by the Employer to work in a place that has been declared an epidemic area in accordance with law and contracting an epidemic disease. ”

The Guangdong Provincial Department of Human Resources and Social Security forwarded the provisions of the Notice of the Ministry of Human Resources and Social Security, the Ministry of Finance and the National Health Commission on Relevant Protection Issues concerning Medical Care and Related Workers Infected with Novel Coronavirus Pneumonia due to the Performance of Work Duties, and if an employee assigned by an employer to Hubei Province is infected with novel coronavirus pneumonia, it shall refer to the provisions of Item 4 of Article 10 of the Regulations on Work-related Injury Insurance of Guangdong Province as a work injury. Referring to the above provisions, if an employee assigned by an employer to travel (work) to an epidemic area is infected with novel coronavirus pneumonia, it shall refer to the provisions of Item 4 of Article 10 of the Regulations on Work-related Injury Insurance of Guangdong Province as a work-related injury.

In the prevention and treatment of novel coronavirus pneumonia, if the worker is recognized as a work injury, or treated as a work injury, who will bear the relevant expenses incurred?

A: According to the provisions of the Ministry of Human Resources and Social Security, the Ministry of Finance and the National Health Commission's "Notice on Relevant Protection Issues for Medical Care and Related Workers Infected with Novel Coronavirus Pneumonia due to the Performance of Work Duties", the relevant expenses incurred by the above-mentioned staff members who have participated in the work injury insurance shall be paid by the work injury insurance fund and the unit in accordance with the relevant provisions of the work injury insurance; if they do not participate in the work injury insurance, the employer shall pay in accordance with the statutory standards, and the expenses incurred by the financial subsidy unit shall be subsidized by the finance department at the same level. The administrative departments of human resources and social security, finance, and health and health at all levels should cooperate closely, do a good job in service, and timely and jointly do a good job in the identification of work injuries and the payment of treatment for the above-mentioned personnel.

In short, those who participate in work-related injury insurance shall be paid by the social fund and the employer according to the standards set by law; if they do not participate in the work-related injury insurance, the employer shall bear all the responsibilities.

Can an ordinary employee who is infected as a volunteer to support epidemic prevention be recognized as a work injury?

Article 15 of the Regulations on Work-related Injury Insurance stipulates that "an employee who has any of the following circumstances shall be deemed to be injured at work: ... (2) Being harmed in activities to safeguard national or public interests, such as emergency rescue and disaster relief. ”

Under the novel coronavirus pneumonia epidemic, what are the policy opinions on the identification of work injuries?

A: Fully implement the requirements of the Notice on Issues Concerning the Protection of Medical Care and Related Workers Infected with Novel Coronavirus Pneumonia due to the Performance of Work Duties, and for medical care, epidemic prevention and other relevant staff involved in the prevention and control of the pneumonia epidemic caused by the new coronavirus infection due to the performance of their work duties, they shall be recognized as work injuries with reference to the first paragraph of Article 9 of the Regulations on Work Injury Insurance of Guangdong Province. For special reasons such as the prevention and control and treatment of the pneumonia epidemic caused by the novel coronavirus, the time limit for the employer to apply for the recognition of work injury shall be appropriately extended.

Under the novel coronavirus epidemic, how to deal with the treatment of work injury insurance?

A: The drugs and diagnosis and treatment items covered by the National Health Commission's "Diagnosis and Treatment Plan for Pneumonia Infected with Novel Coronavirus Infection" and the cost of their use of relevant inpatient service facilities for the treatment of injured workers infected with novel coronavirus pneumonia are included in the scope of payment of the work injury insurance fund. Among the above-mentioned objects identified as work-related injuries, those who have participated in work-related injury insurance shall open up a fast-track channel for payment of work-related injury benefits and accelerate the payment of work-related injury insurance benefits; if they are not insured, the employer shall pay the work-related injury insurance benefits in accordance with the statutory standards.

If an employee is engaged in the prevention and control of the new coronavirus, can he or she apply for health and epidemic prevention allowance?

Article 33 of the Measures for the Implementation of the Law on the Prevention and Control of Infectious Diseases stipulates: "All staff members who are exposed to pathogens of infectious diseases in production and work may apply for health and epidemic prevention allowances in accordance with the relevant provisions of the State." Article 64 stipulates: "For personnel engaged in the prevention, medical treatment, scientific research, teaching, and on-site handling of epidemic situations of infectious diseases, as well as other personnel who are exposed to pathogens of infectious diseases in production and work, the relevant units shall, in accordance with the provisions of the State, adopt effective health protection measures and medical care measures, and give appropriate allowances." ”

How long can I get medical treatment if I am unfortunate enough to be infected?

A: According to Article 3 of the Notice of the Ministry of Labor on the Issuance of the Provisions on the Medical Treatment Period for Sick or Non-work-related Injuries of Enterprise Employees (Ministry of Labor Law [1994] No. 479), when an enterprise employee needs to stop working for medical treatment due to illness or non-work-related injury, a medical period of three months to 24 months is given according to the actual years of work and the number of years of work in the unit: (1) If the actual working experience is less than ten years, the working experience in the unit is three months; if it is more than five years, it is six months. (2) Where the actual working experience is more than 10 years, the working experience in the unit is 6 months; those who have worked for 5 years or more than 10 years shall be 9 months; 12 months for those who have worked for 10 years to 15 years; 18 months for those who have worked for 15 years or more than 20 years; and 24 months for those who have worked for more than 20 years.

What should I do if I cannot apply for arbitration or prosecution in a timely manner because I am affected by the epidemic?

A: The statute of limitations is suspended.

Article 27 of the Labor Dispute Mediation and Arbitration Law stipulates: "The limitation period for applying for arbitration of labor disputes is one year. The limitation period for arbitration is calculated from the date on which the parties knew or should have known that their rights had been infringed. ...... If, due to force majeure or other legitimate reasons, a party cannot apply for arbitration during the arbitration limitation period provided for in paragraph 1 of this Article, the arbitration limitation period shall be suspended. The arbitration limitation period shall continue to be calculated from the date on which the reason for the suspension of the limitation period is eliminated. ”

The novel coronavirus epidemic can be used as "force majeure or other justifiable reasons" as stipulated in Article 27 of the Labor Dispute Mediation and Arbitration Law.

Remember, it is a stay, not an interruption, and that the suspension of the limitation period can only occur within the last six months of the limitation period, while the interruption of the limitation period can occur for the entire period during which the limitation period is in progress. That is to say, even if the epidemic is affected by the epidemic, if there is a statute of limitations of more than 6 months at the end of the impact of the disease, the statute of limitations will not be extended.

According to Article 3 of the Notice of the General Office of the Ministry of Human Resources and Social Security on Properly Handling Labor Relations Issues During the Prevention and Control of the Novel Coronavirus Pneumonia Epidemic, if the parties are unable to apply for arbitration of labor and personnel disputes during the statutory arbitration limitation period due to the impact of the epidemic, the arbitration limitation period is suspended. The arbitration limitation period shall continue to be calculated from the date on which the reason for the suspension of the limitation period is eliminated. Where it is difficult for a labor and personnel dispute arbitration institution to hear a case within the statutory time limit due to the impact of the epidemic, the trial period may be extended accordingly.

During the epidemic prevention and control period, 45 employee relations practice answers related to the epidemic | Zenith Service Outsourcing

During the epidemic prevention and control period, 45 practical answers to the epidemic-related employee relations were shared with you.