Zhongcheng Qingtai | HR Legal Corner: Corporate employment compliance during the new coronary pneumonia epidemic

Published:

2022-05-07

Recently, the new crown virus Omicjon variant strain caused a national outbreak. The outbreak of the epidemic is bound to be accompanied by the corresponding isolation, closure, control measures, the necessary prevention and control so that we have to make changes and adjustments to life, work, but also to the normal employment management of enterprises to bring challenges. Small and medium-sized enterprises, catering, tourism, training and other industries are the main groups severely affected by the epidemic, how to control labor costs, legal compliance, and prevent legal risks in the severe situation of the epidemic, involving many specific issues. This paper provides some guidance for enterprises only from the aspects of wage payment, annual leave arrangement, contract management and limitation suspension. 1. Wage Payment As stated in the previous article, the Human Resources and Social Security Department [2020] No. 5 "Notice on Properly Handling Labor Relations during the Prevention and Control of the Pneumonia Epidemic Infected by Novel Coronavirus", [2020] No. 8 "Opinions on Stabilizing Labor Relations during the Prevention and Control of the Pneumonia Epidemic Infected by Novel Coronavirus to Support Enterprises to Resume Work and Production" and February 22, 2022 "Answers to Questions on Labor Employment, Labor Relations, Wages, Wages, Social Security, Social Security, Social Security, Social Security, Social Security, Social Security, Social Security, Social Security and the issue of wages is regulated. That is, during the delayed resumption of work or non-return to work affected by the epidemic, the enterprise may consult with the employees in accordance with the relevant provisions of the State on the payment of wages during the shutdown and shutdown, and pay wages in accordance with the standards stipulated in the labor contract within a wage payment cycle, and pay living expenses in accordance with the relevant provisions if more than one wage payment cycle. Whether the remuneration for work includes bonuses and subsidies depends on the specific circumstances. If the monthly payment is fixed, it shall not fluctuate due to the attendance or work performance of the worker, and shall be paid as a fixed wage composition. If the employee is reimbursed according to the actual bill or some welfare treatment decided by the enterprise, it may not be paid. If there are special agreements or provisions in the labor contract or the rules and regulations of the enterprise, the agreements or provisions shall be followed as long as they do not violate the provisions of the law. So the decline in business efficiency, can reduce the wage standard? The "Notice of the General Office of the Ministry of Human Resources and Social Security on Properly Handling Labor Relations during the Prevention and Control of the New Coronavirus Infected Pneumonia Epidemic" (Human Resources and Social Security Department Mingdian [2020] No. 5) stipulates: "If an enterprise has difficulties in production and operation due to the impact of the epidemic, it can adopt methods such as salary adjustment, job rotation, and shortening working hours through consultation with employees, and try not to lay off or reduce layoffs." At the same time, you can refer to the provisions of a city: "In the special period of epidemic prevention and control, to ensure the orderly resumption of work and production of employers to resume the market, as far as possible to reduce the pressure on the production and operation of employers, stabilize the jobs of workers and ensure employment, is the primary task at present. For the employer in accordance with legal procedures through democratic consultation with the workers' congress, trade unions, staff representatives on the transfer of wages, delay in the payment of wages, rotation of jobs, work stoppage and other matters to reach an agreement, and the opinion is fair and reasonable, only applicable during the epidemic period, can be used as a basis for adjudication." In other words, you can negotiate a salary reduction and delay payment, but you need to pay attention to the legality of the procedure. It should be noted that, according to the announcement issued by the Ministry of Finance and the General Administration of Taxation and the provisions of the Labor Contract Law, during the prevention and control of the epidemic, the unit to provide or issue to employees masks, medical supplies, killing supplies, etc., can not be included in wages, salary income, nor because the efficiency of the enterprise is affected by the payment of in-kind instead of wages. Special provisions for workers are that temporary work subsidies and bonuses obtained by medical personnel and epidemic prevention workers are exempt from personal income tax. 2. leave arrangements According to the Ministry of Human Resources and Social Security and the Supreme People's Court issued the "Notice on the Joint Release of the First Batch of Typical Cases of Labor and Personnel Disputes", "Measures for the Implementation of Paid Annual Leave for Enterprise Employees", and the Ministry of Human Resources and Social Security issued [2020] No. 8 "Opinions on Stabilizing Labor Relations to Support Enterprises to Resuming Work and Resumption of Production during the Prevention and Control of Novel Coronavirus Infection Pneumonia Epidemic, negotiate with employees to give priority to the use of paid annual leave, enterprise-owned welfare leave and other types of leave. Enterprises can give priority to the use of paid annual leave, enterprise-owned welfare leave and other types of leave to minimize the loss of business operations and workers' income from the new coronary pneumonia epidemic. When arranging for workers to give priority to the use of paid annual leave during the period of delaying the resumption of work and production, the enterprise should try its best to consider the actual situation of the workers and perform the negotiation procedures in accordance with the law, but there is no requirement that "consensus must be reached through consultation", regardless of whether the workers agree or not, the enterprise can make overall arrangements for paid annual leave after performing the negotiation procedures, but pay paid annual leave wages in accordance with the law. When employees in the closed and controlled areas are unable to work normally, employees can be allowed to take unpaid personal leave upon mutual agreement or upon application by employees. Workers should accurately understand the laws and policies, and actively accept the employer arrangements. Therefore, during the prevention and control of the new coronavirus epidemic, in order to actively respond to the national call, strengthen the prevention and control of the pneumonia epidemic of the new coronavirus infection, effectively reduce the gathering of personnel, block the spread of the epidemic, and better protect the life safety and health of employees, employees can be arranged to take annual leave or unpaid personal leave according to the specific production and work conditions of the unit and comprehensively consider the wishes of the employees. 3. Contract Management 1. Signing of contract For new employees who have already issued an offer but are affected by the epidemic, the enterprise can withdraw the change of the entry time and resend it before the offer is delivered. If the offer has been delivered to the candidate and the candidate has confirmed it, the enterprise cannot change it at will. However, if the epidemic control enterprise is in a shutdown, shutdown state and other objective reasons can not handle the entry in a timely manner, constitute a legal force majeure, the enterprise can ask the candidate to postpone the entry, it is recommended that the enterprise and the candidate friendly consultation, to avoid disputes. If the written labor contract cannot be signed or renewed in time due to the impact of the epidemic, it is recommended to negotiate with the laborer and conclude the written labor contract in electronic form, but it should meet the requirements of the electronic signature law and other legal provisions, or sign it by video, save relevant videos or evidence, and sign it in time after the factors affecting the epidemic are eliminated. 2. Rescission of contract Many enterprises are facing operational difficulties due to the impact of the epidemic, but want to terminate the labor contract with employees in accordance with the provisions of Article 40, Item (III) of the Labor Contract Law, but it should be noted that the requirements of this clause are more stringent and need to meet the conditions before it can be applied. For example, the enterprise is required to have major changes in the objective conditions on which the labor contract is concluded due to the epidemic, such as force majeure caused by the epidemic or shutdown of the enterprise due to policy influence, etc., and there is a causal relationship between the changes and the inability to continue to perform the labor contract, resulting in the inability to perform all or major terms of the labor contract, or the continued performance will cause great damage to the interests of the enterprise, seriously unfair, etc. In terms of procedures, the company and its employees are required to conduct honest and friendly negotiations on changing the content of the labor contract. The company has made efforts to continue the performance of the labor contract, but the two parties have not yet reached an agreement. The company has fulfilled the notification procedure one month in advance or paid one month. The salary is used as a payment, and the economic compensation is paid in accordance with the law, and the labor union is notified. So, if the employee is diagnosed or infected, can the labor contract be terminated? If an employee is diagnosed or infected with new coronary pneumonia, the unit may not terminate the labor contract in accordance with the provisions of Articles 40 and 41 of the Labor Contract Law, but it is not absolutely impossible to dismiss the employee. If the employee's labor contract expires during the isolation period, the enterprise cannot terminate the contract on the grounds of the expiration of the contract, but waits for the labor contract to automatically extend to the expiration of the employee's medical treatment 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. So can companies make layoffs? In accordance with the provisions of the Notice of the General Office of the Ministry of Human Resources and Social Security on Properly Handling Labor Relations during the Prevention and Control of the Pneumonia Epidemic Infected with Novel Coronavirus, pneumonia patients, suspected patients, and close contacts infected with novel coronavirus are treated in isolation. During the period or medical observation, as well as enterprise employees who cannot provide normal labor due to the government's implementation of isolation measures or other emergency measures, economic layoffs cannot be used. Relevant laws and regulations have strict requirements on the entity and procedure of economic layoffs. Specific personnel shall not be dismissed, specific personnel shall be recruited first, legal procedures such as listening to the opinions of trade unions or employees and reporting to the labor administrative department shall be performed, and there is no clear standard for the extent to which enterprises can be identified as serious difficulties in production and operation. Therefore, under the current circumstances, even if enterprises need to lay off employees due to epidemic conditions, careful consideration should be given to the manner of release and professional lawyers should be hired to develop a layoff plan. Suspension of 4. aging The Notice of the General Office of the Ministry of Human Resources and Social Security on the Proper Handling of Labor Relations during the Prevention and Control of the Pneumonia Epidemic Infected by the New Coronavirus stipulates: "If the parties are unable to apply for labor and personnel dispute arbitration during the statutory arbitration limitation period due to the impact of the epidemic, the arbitration limitation period shall be suspended. The period of limitation for arbitration shall continue to be calculated from the date when the cause for suspension of the limitation period is eliminated. If 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 hearing period may be extended accordingly." The (I) of Guiding Opinions of the Supreme People's Court on Several Issues Concerning the Proper Trial of Civil Cases Involving the New Coronary Pneumonia Epidemic in accordance with the Law stipulates: ...... (VI) suspend the statute of limitations in accordance with the law. During the last six months of the statute of limitations period, if the right holder cannot exercise the right of claim due to the epidemic or epidemic prevention and control measures, the people's court shall support the suspension of the statute of limitations in accordance with the first paragraph of Article 194 of the General Principles of Civil Law. The period of the proceedings (VII) be postponed in accordance with the law. If the time limit for litigation prescribed by law or designated by the people's court is delayed due to an epidemic or epidemic prevention and control measures, and the parties apply for an extension of the time limit in accordance with Article 83 of the Civil Procedure Law, the people's court shall consider whether to grant it in accordance with the epidemic situation and the evidence provided by the parties, and protect the litigation rights of the parties in accordance with the law. If the parties concerned are diagnosed with new coronary pneumonia, suspected new coronary pneumonia, asymptomatic infected persons and related close contacts, and the time limit for litigation expires during the period of isolation in accordance with the law, the people's court shall grant permission to apply for an extension of the time limit in accordance with the provisions of this article. It is recommended that enterprises should pay attention to the local government's policy of control and closure during the outbreak and retain relevant documents so that they can be used to prove the existence of a suspension of arbitration/statute of limitations. In summary, due to the epidemic caused by the employer's production and operation difficulties, the employer can guide the workers through consultation, the use of priority arrangements for annual leave, adjustment of wages, deferred wages, rotation, shortening of working hours, suspension of production and other ways of flexible handling, stable employment relations, the necessary layoffs or termination, pay attention to procedural compliance. Enterprise HR should pay attention to the retention of relevant control and closure policy documents during the outbreak to prove that there is a time limit for suspension.

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