Zhongcheng Qingtai | HR Legal Corner: How do companies pay wages during epidemic prevention and control?
Published:
2022-05-01
Affected by the new crown epidemic, many enterprises due to the epidemic caused by the production and operation and employee job status fluctuations, some enterprises may stop production. At the same time, in order to control the risk of the spread of the epidemic, most residential areas implement temporary control. After closed management, it is not allowed to leave the residential area and employees cannot work in the workplace. How should companies pay their salaries during this period? Let's first look at the relevant regulations of the Ministry of Human Resources and Social Security in 2020. On January 24, 2020, article 2 of the notice on properly handling labor relations during the prevention and control of pneumonia epidemic caused by novel coronavirus infection [2020] No. 5 stipulates: "if enterprises have difficulties in production and operation due to the impact of the epidemic, they can stabilize their jobs by adjusting salaries, rotating jobs and shortening working hours through consultation with employees, and try not to lay off or reduce layoffs as much as possible. Eligible enterprises can enjoy stable post subsidies according to regulations. If an enterprise stops production within a wage payment cycle, the enterprise shall pay the wages of the employees according to the standards stipulated in the labor contract. If more than one wage payment cycle is exceeded, if the employee provides normal labor, the wage paid by the enterprise to the employee shall not be lower than the local minimum wage standard. If the staff and workers fail to provide normal labor, the enterprise shall pay living expenses, and the standard of living expenses shall be implemented in accordance with the measures prescribed by the provinces, autonomous regions and municipalities directly under the Central Government." On February 7, 2020, the Ministry of Human and Social Affairs issued [2020] No. 8, "Opinions on Stabilizing Labor Relations during the Prevention and Control of the New Coronavirus Infection Pneumonia Epidemic to Support Enterprises to Resuming Work and Resuming Production", Article 2, paragraph (I): "Encourage consultation to resolve the employment problem before the resumption of work. If the employees cannot arrive on schedule or the enterprise cannot start production due to the epidemic situation, the enterprise shall be guided to actively communicate with the employees. If conditions permit, the enterprise may arrange the employees to work at home to complete the work tasks through flexible working methods such as telephone and network. For enterprises that do not have telecommuting conditions, they shall negotiate with the employees to give priority to the use of paid annual leave, enterprise-set welfare leave and other types of leave. The trade unions of enterprises should be guided to actively mobilize workers and enterprises in the same boat, and on the basis of taking into account the legitimate rights and interests of both enterprises and workers, to help enterprises minimize the losses caused by the epidemic." On February 22, 2022, the Ministry of Human Resources and Social Security issued the "Questions and Answers on Labor Employment, Labor Relations, Wages and Social Security Contributions in Resuming Work and Production", in which Question 13: "How should wages and benefits be paid during the period of delayed resumption of work or not returning to work be paid?" answer: "During the delayed return to work or non-return to work affected by the epidemic, for employees who cannot provide normal labor or other employees who cannot provide normal labor after using all kinds of vacations, the enterprise can consult with the employees according to the relevant provisions of the state on wage payment during shutdown and shutdown. If the wage payment cycle is within one wage payment cycle, the wage will be paid according to the standards stipulated in the labor contract, and if the wage payment cycle exceeds one, the living expenses will be paid according to the relevant provisions." In accordance with the above-mentioned provisions and the relevant provisions of the Labor Contract Law, and in conjunction with judicial precedents, enterprises are given the following guidance on the payment of wages during the prevention and control of the epidemic. If a 1. enterprise has operational difficulties due to the impact of the epidemic and stops production within a wage payment cycle, it shall pay the wages of its employees in accordance with the standards stipulated in the labor contract. How to understand "within a salary payment cycle"? For example, if an enterprise starts to stop operating on April 28, it will be a salary payment cycle until May 27, instead of calculating according to the salary payment time of the enterprise. During this period, the enterprise shall still pay the wages of the employees in accordance with the standards stipulated in the labor contract. After May 28 for more than one pay cycle. 2. an enterprise has operational difficulties due to the impact of the epidemic and exceeds one wage payment cycle, if the employee provides labor, the wage paid by the enterprise to the employee shall not be lower than the local minimum wage; if the labor is not provided, the enterprise shall pay living expenses. When an enterprise exceeds a wage payment cycle due to business difficulties, the enterprise shall distinguish whether the employee has provided labor. If the employees provide labor, the enterprise may pay wages according to the new standard agreed by both parties, but it shall not be lower than the local minimum wage standard. Regarding whether the "local minimum wage standard" includes "five insurances and one fund", the regulations vary from region to region. Provinces and cities that do not include "social insurance and house fund" include Beijing, Shanghai, Anhui, etc.; provinces and cities that include "social insurance and house fund" include Shandong, Tianjin, Wuhan, etc.; and those that include social security but do not include provident funds, such as Jiangsu, Hunan, etc., the specific standards should be implemented in accordance with the regulations of the location of the enterprise. If the employee does not provide labor, the enterprise shall pay living expenses. With regard to the standard of living expenses, at present, the standard of living expenses in Beijing, Shandong, Sichuan, Chongqing and other places is not less than 70% of the local minimum wage; the standard of living expenses in Jiangsu, Zhejiang, Henan and other places is not less than 80% of the local minimum wage, and so on, which should be implemented in accordance with the measures prescribed by the province, autonomous region and municipality directly under the Central Government where the enterprise is located. 3. the office or the employee's residence is closed due to the epidemic, and the employee cannot enter the unit to work, how will the salary be paid? 1. If the employee cannot enter the unit to work due to the closure of the office or the employee's residence, if the company has the conditions for telecommuting, the company can arrange for the employee to telecommut through the telephone, the Internet, etc. During this period, the company should pay wages normally. 2. For enterprises that do not have the conditions for telecommuting, they can negotiate with their employees to give priority to the use of paid annual leave, adjusted leave, enterprise-set welfare leave and other types of leave. 3. For employees who still cannot provide normal labor or other employees who cannot provide normal labor after using all kinds of vacations, the enterprise can refer to the relevant provisions of the state on wage payment during the shutdown and shutdown period to negotiate with the employees. Wages are paid according to the standards stipulated in the labor contract, and living expenses are paid according to relevant regulations if the wage payment cycle exceeds one wage payment cycle. 4. For employees with telecommuting conditions, but the actual workload is significantly reduced compared with before, the enterprise can adjust the post and salary after consultation with the employees. The "consultation with employees" mentioned above many times is the democratic procedure, and the legal basis is Article 4 of the Labor Contract Law: "When the employer formulates, revises or decides on rules and regulations or important matters directly related to the immediate interests of employees, such as labor remuneration, working hours, rest and vacation, etc., it shall be discussed by the workers' congress or all employees, put forward proposals and opinions, and negotiate with the trade union or employee representatives on an equal footing; the employing unit shall publicize the rules and regulations and decisions on major matters directly related to the vital interests of the workers, or inform the workers." According to the above provisions, if an enterprise intends to make changes to matters involving the vital interests of employees, the changes shall be discussed and approved by the employee representative assembly or all employees. The form of the meeting can be online meeting, WeChat and other methods. The enterprise should truthfully explain the current situation of the enterprise's production and operation to the employees, and inform the employees of the rest and vacation plan, the job adjustment and salary adjustment plan or the decision to stop work and production, which can be implemented after the employees' discussion and approval. It should be noted that more than 2/3 employee representatives must participate in the convening of the employee representative assembly, and the plan must be approved by more than half of all employee representatives (not participating employee representatives) before it can be implemented. After the meeting, the enterprise shall also publicize or inform the employees through e-mail, OA system, wechat, etc., so as to be deemed to have fulfilled the notification procedure. At the same time, enterprises should pay attention to the retention of participants, meeting content, voting procedures and after the meeting to inform the staff or to the staff of the evidence.
Affected by the new crown epidemic, many enterprises due to the epidemic caused by the production and operation and employee job status fluctuations, some enterprises may stop production. At the same time, in order to control the risk of the spread of the epidemic, most residential areas implement temporary control. After closed management, it is not allowed to leave the residential area and employees cannot work in the workplace. How should companies pay their salaries during this period?
Let's first look at the relevant regulations of the Ministry of Human Resources and Social Security in 2020.
On January 24, 2020, article 2 of the notice on properly handling labor relations during the prevention and control of pneumonia epidemic caused by novel coronavirus infection [2020] No. 5 stipulates: "if enterprises have difficulties in production and operation due to the impact of the epidemic, they can stabilize their jobs by adjusting salaries, rotating jobs and shortening working hours through consultation with employees, and try not to lay off or reduce layoffs as much as possible. Eligible enterprises can enjoy stable post subsidies according to regulations. If an enterprise stops production within a wage payment cycle, the enterprise shall pay the wages of the employees according to the standards stipulated in the labor contract. If more than one wage payment cycle is exceeded, if the employee provides normal labor, the wage paid by the enterprise to the employee shall not be lower than the local minimum wage standard. If the staff and workers fail to provide normal labor, the enterprise shall pay living expenses, and the standard of living expenses shall be implemented in accordance with the measures prescribed by the provinces, autonomous regions and municipalities directly under the Central Government."
On February 7, 2020, the Ministry of Human and Social Affairs issued [2020] No. 8, "Opinions on Stabilizing Labor Relations during the Prevention and Control of the New Coronavirus Infection Pneumonia Epidemic to Support Enterprises to Resuming Work and Resuming Production", Article 2, paragraph (I): "Encourage consultation to resolve the employment problem before the resumption of work. If the employees cannot arrive on schedule or the enterprise cannot start production due to the epidemic situation, the enterprise shall be guided to actively communicate with the employees. If conditions permit, the enterprise may arrange the employees to work at home to complete the work tasks through flexible working methods such as telephone and network. For enterprises that do not have telecommuting conditions, they shall negotiate with the employees to give priority to the use of paid annual leave, enterprise-set welfare leave and other types of leave. The trade unions of enterprises should be guided to actively mobilize workers and enterprises in the same boat, and on the basis of taking into account the legitimate rights and interests of both enterprises and workers, to help enterprises minimize the losses caused by the epidemic."
On February 22, 2022, the Ministry of Human Resources and Social Security issued the "Questions and Answers on Labor Employment, Labor Relations, Wages and Social Security Contributions in Resuming Work and Production", in which Question 13: "How should wages and benefits be paid during the period of delayed resumption of work or not returning to work be paid?" answer: "During the delayed return to work or non-return to work affected by the epidemic, for employees who cannot provide normal labor or other employees who cannot provide normal labor after using all kinds of vacations, the enterprise can consult with the employees according to the relevant provisions of the state on wage payment during shutdown and shutdown. If the wage payment cycle is within one wage payment cycle, the wage will be paid according to the standards stipulated in the labor contract, and if the wage payment cycle exceeds one, the living expenses will be paid according to the relevant provisions."
In accordance with the above-mentioned provisions and the relevant provisions of the Labor Contract Law, and in conjunction with judicial precedents, enterprises are given the following guidance on the payment of wages during the prevention and control of the epidemic.
If a 1. enterprise has operational difficulties due to the impact of the epidemic and stops production within a wage payment cycle, it shall pay the wages of its employees in accordance with the standards stipulated in the labor contract.
How to understand "within a salary payment cycle"? For example, if an enterprise starts to stop operating on April 28, it will be a salary payment cycle until May 27, instead of calculating according to the salary payment time of the enterprise. During this period, the enterprise shall still pay the wages of the employees in accordance with the standards stipulated in the labor contract. After May 28 for more than one pay cycle.
2. an enterprise has operational difficulties due to the impact of the epidemic and exceeds one wage payment cycle, if the employee provides labor, the wage paid by the enterprise to the employee shall not be lower than the local minimum wage; if the labor is not provided, the enterprise shall pay living expenses.
When an enterprise exceeds a wage payment cycle due to business difficulties, the enterprise shall distinguish whether the employee has provided labor. If the employees provide labor, the enterprise may pay wages according to the new standard agreed by both parties, but it shall not be lower than the local minimum wage standard. Regarding whether the "local minimum wage standard" includes "five insurances and one fund", the regulations vary from region to region. Provinces and cities that do not include "social insurance and house fund" include Beijing, Shanghai, Anhui, etc.; provinces and cities that include "social insurance and house fund" include Shandong, Tianjin, Wuhan, etc.; and those that include social security but do not include provident funds, such as Jiangsu, Hunan, etc., the specific standards should be implemented in accordance with the regulations of the location of the enterprise.
If the employee does not provide labor, the enterprise shall pay living expenses. With regard to the standard of living expenses, at present, the standard of living expenses in Beijing, Shandong, Sichuan, Chongqing and other places is not less than 70% of the local minimum wage; the standard of living expenses in Jiangsu, Zhejiang, Henan and other places is not less than 80% of the local minimum wage, and so on, which should be implemented in accordance with the measures prescribed by the province, autonomous region and municipality directly under the Central Government where the enterprise is located.
3. the office or the employee's residence is closed due to the epidemic, and the employee cannot enter the unit to work, how will the salary be paid?
1. If the employee cannot enter the unit to work due to the closure of the office or the employee's residence, if the company has the conditions for telecommuting, the company can arrange for the employee to telecommut through the telephone, the Internet, etc. During this period, the company should pay wages normally.
2. For enterprises that do not have the conditions for telecommuting, they can negotiate with their employees to give priority to the use of paid annual leave, adjusted leave, enterprise-set welfare leave and other types of leave.
3. For employees who still cannot provide normal labor or other employees who cannot provide normal labor after using all kinds of vacations, the enterprise can refer to the relevant provisions of the state on wage payment during the shutdown and shutdown period to negotiate with the employees. Wages are paid according to the standards stipulated in the labor contract, and living expenses are paid according to relevant regulations if the wage payment cycle exceeds one wage payment cycle.
4. For employees with telecommuting conditions, but the actual workload is significantly reduced compared with before, the enterprise can adjust the post and salary after consultation with the employees.
The "consultation with employees" mentioned above many times is the democratic procedure, and the legal basis is Article 4 of the Labor Contract Law: "When the employer formulates, revises or decides on rules and regulations or important matters directly related to the immediate interests of employees, such as labor remuneration, working hours, rest and vacation, etc., it shall be discussed by the workers' congress or all employees, put forward proposals and opinions, and negotiate with the trade union or employee representatives on an equal footing; the employing unit shall publicize the rules and regulations and decisions on major matters directly related to the vital interests of the workers, or inform the workers."
According to the above provisions, if an enterprise intends to make changes to matters involving the vital interests of employees, the changes shall be discussed and approved by the employee representative assembly or all employees. The form of the meeting can be online meeting, WeChat and other methods. The enterprise should truthfully explain the current situation of the enterprise's production and operation to the employees, and inform the employees of the rest and vacation plan, the job adjustment and salary adjustment plan or the decision to stop work and production, which can be implemented after the employees' discussion and approval. It should be noted that more than 2/3 employee representatives must participate in the convening of the employee representative assembly, and the plan must be approved by more than half of all employee representatives (not participating employee representatives) before it can be implemented. After the meeting, the enterprise shall also publicize or inform the employees through e-mail, OA system, wechat, etc., so as to be deemed to have fulfilled the notification procedure. At the same time, enterprises should pay attention to the retention of participants, meeting content, voting procedures and after the meeting to inform the staff or to the staff of the evidence.
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