Amusement parks have begun to close again. How to deal with labor relations during the epidemic?

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1. What should be done when the employer decides to postpone the resumption of work due to epidemic prevention and control or the employee is unable to return to work on time?

? According to the Ministry of Human Resources and Social Security’s All-China Federation of Trade Unions, China Enterprise Confederation/China Entrepreneurs Association, All-China Federation of Industry and Commerce’s "On stabilizing labor relations and supporting enterprises to resume work and production during the prevention and control of the new coronavirus infection pneumonia epidemic" "Opinions" (Ministry of Human Resources and Social Security [2020] No. 8) stipulates that if employees affected by the epidemic cannot report to work as scheduled or the enterprise cannot start production, enterprises must be guided to proactively communicate with employees. If conditions permit, enterprises can arrange for employees to communicate by phone, Use flexible working methods such as the Internet to work from home to complete work tasks; for companies that do not have the conditions for remote working, they can negotiate with employees to give priority to paid annual leave, company-set welfare leave and other types of leave, which exceed the annual leave to which they are entitled. During the period, employees can take personal leave,

? During the period of delayed resumption of work or failure to return to work due to the epidemic, guidance is provided to employees who are still unable to provide normal work after using all types of leave or who are otherwise unable to provide normal work. The enterprise consults with its employees in accordance with the relevant national regulations on wage payment during suspension and production suspension, and pays wages in accordance with the standards stipulated in the labor contract within one wage payment cycle; when paying wages beyond one wage payment period and in accordance with local policies and relevant regulations, it can negotiate with employees Consistently, wages are paid in accordance with local minimum wage standards.

2. Do non-local employees returning to work or newly recruited non-local employees need to be quarantined?

When non-local employees return to work or newly recruited non-local employees, they should determine whether and how to quarantine in accordance with the regulations of the government where the company is located.

3. Can companies refuse to hire people on the grounds that they come from areas with severe epidemics?

No.

Various human resources service agencies and employers shall not publish recruitment information that refuses to recruit workers from areas with severe epidemics.

Employers of all types shall not refuse to recruit relevant personnel on the grounds that they come from areas with severe epidemics.

4. Can companies extend working hours during the epidemic prevention and control period?

For enterprises that need to work overtime urgently to undertake government epidemic prevention and control tasks, on the premise of ensuring the health and safety of workers, the enterprise, after consultation with the labor union and employees, can appropriately extend working hours to respond to emergency production tasks and are not legally subject to extended working hours.

5. If an employee is unable to provide normal labor due to the implementation of isolation measures in accordance with the law or emergency measures taken by the government in accordance with the law, can the enterprise terminate the labor relationship?

No.

During this period, enterprises are not allowed to terminate labor contracts or return dispatched workers who are unable to provide normal workers due to relevant measures.

If the labor contract expires during this period, it will be postponed until 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.

6. Due to the impact of epidemic prevention and control, if an enterprise's collective contract cannot be re-signed in time after it expires, can the term of the collective contract be extended?

Due to the impact of epidemic prevention and control, if an enterprise's collective contract is unable to promptly perform statutory democratic procedures to re-sign a collective contract after its expiration, the enterprise can solicit employee representatives or all employees through appropriate methods such as phone calls, text messages, WeChat, and conference calls. Employees' opinions on extending the term of the collective contract can be extended after both parties reach consensus and be publicized in an appropriate manner.

? 7. Affected by the epidemic, which has caused difficulties in production and operation of the enterprise and is temporarily unable to pay wages, can the payment of wages to employees be deferred?

For enterprises that have difficulties in production and operation due to the impact of the epidemic, enterprises are encouraged to negotiate with employees through deliberative democratic procedures to stabilize jobs by adjusting salaries, rotating work and holidays, shortening working hours, etc.

For those who are temporarily unable to pay wages, the enterprise can defer the payment of wages to employees after consultation with the labor union or employee representatives.

8. Is the infection of new coronavirus pneumonia by enterprise employees during work considered a work-related injury?

"Notice on the protection issues for medical and related staff who are infected with new coronavirus pneumonia due to the performance of work duties" "(Ministry of Human Resources and Social Security Letter [2020] No. 11) clarifies that in the prevention and treatment of COVID-19, if medical and related staff are infected with COVID-19 or die due to COVID-19 due to the performance of their work duties, they should be regarded as work-related injuries and enjoy the benefits in accordance with the law. Work-related injury insurance benefits.

If you are not a medical and related staff engaged in the prevention and treatment of COVID-19, infection with COVID-19 cannot be considered a work-related injury.

9. Does receiving the COVID-19 vaccine count as sick leave?

The current domestic epidemic situation is still severe, and vaccination against the new coronavirus is gradually being carried out in various places.

Because many people need to go to work and need to take time off to receive the COVID-19 vaccine, can this be counted as sick leave?

"Interim Provisions on Wage Payment"

Article 10: During the period when workers participate in social activities in accordance with the law during statutory working hours, the employer shall treat them as providing normal labor and pay wages .

So, does receiving the COVID-19 vaccine qualify as participating in social activities in accordance with the law as described in the above regulations?

If the local government has arranged for registration for the new crown vaccine, according to the provisions of the Infectious Disease Prevention and Control Law, individuals have the obligation to cooperate with the relevant departments in implementing epidemic prevention measures, which has constituted the conditions for participating in social activities in accordance with the law.

Employers shall pay workers wages according to the standard for workers to work normally.

10. During the epidemic, if employees lie about their itinerary, does the employer have the right to terminate the labor contract?

During the epidemic prevention and control period, companies should comply with the emergency response measures adopted by the people's government, fully understand the outings of their employees, and proactively cooperate with the registration and management of employee health information.

Employees have the obligation to report truthfully, fill out health registration forms, and cooperate with the implementation of epidemic prevention and control measures. If employees lie about their itinerary, it will affect the company's interests and threaten the interests of the public.

The company can legally terminate the labor contract in accordance with relevant rules and regulations and labor disciplines.

11. Salary during the quarantine and medical observation period. If you do not work during this period, how will your salary be calculated?

According to relevant laws and regulations of the state and this city, employees of an enterprise who stop working for treatment and rest due to illness shall be entitled to a medical period. During the medical treatment period of employees, the enterprise shall pay sick leave wages in accordance with the labor contract or collective contract, and the sick leave wages shall not be less than 80% of the Beijing minimum wage standard.

According to the provisions of the Implementation Measures of the Law on Prevention and Control of Infectious Diseases, suspected patients of new coronavirus-infected pneumonia and those in close contact with patients or suspected patients of new coronavirus-infected pneumonia must be ruled out as patients or carriers of pathogens after isolation and medical observation. After that, the wages and benefits during the isolation and medical observation period will be paid by the affiliated enterprise according to the wages during the normal working period.

According to the "Opinions on Stabilizing Labor Relations and Supporting the Resumption of Work and Production of Enterprises during the Prevention and Control of the Novel Coronavirus Pneumonia Epidemic" issued by the Ministry of Human Resources and Social Security, it is clear:

For those who are quarantined in accordance with the law Employees who are unable to provide normal labor must be instructed to pay their wages according to normal labor;

After the isolation period is over, employees who still need to stop working for treatment will be paid according to the medical period.

Provisions are made for the payment of wages.

In other words, if you are quarantined at home, you will be paid. But remember to keep your sick leave voucher.

12. How should the sharing of employees between companies occur during the epidemic?

Answer: Companies that are short of workers during the epidemic and companies that have not resumed work The implementation of "free employment" between enterprises is an act of secondment.

“***employee enjoyment” is an act of labor secondment, which improves the efficiency of human resource allocation to a certain extent, but “***employee enjoyment” does not change the relationship between the original employer and the worker labor relations between them. The seconded enterprise and the original employer shall sign a written secondment agreement to clarify the rights and obligations of both parties. The original employer is not allowed to "second out" employees for the purpose of profit; nor is it allowed to collude with the seconded company to violate the provisions of labor laws and regulations and harm the legitimate rights and interests of workers in the name of "private benefits."

13. Employers are about to resume operations, but the COVID-19 epidemic is still complex and serious?

Enterprises must provide necessary epidemic prevention and labor protection measures before starting work, and properly arrange working hours. If an employee is temporarily unable to provide normal labor due to isolation, observation, treatment or emergency measures taken by the government, the company shall not terminate the labor contract or return the dispatched worker. For employees who are unwilling to return to work, the enterprise trade union should promptly publicize the requirements of epidemic prevention and control policies and the importance of the enterprise's resumption of work, and actively persuade employees to return to work in a timely manner. If the persuasion fails or the employee refuses to return to work for other unjustifiable reasons, the company may handle it in accordance with the law.

13. If an employee has applied for resignation before the Spring Festival of 2020, but now the resignation procedures cannot be processed due to the extended holiday due to epidemic prevention and control, is the resignation valid?

Should be valid. According to Article 37 of the Labor Contract Law, an employee may terminate the labor contract by notifying the employer in writing 30 days in advance. The employee's notice to terminate the labor contract becomes legally effective when it reaches the employer. Therefore, if the employee's application for resignation is in line with his true wishes and the written application for resignation has reached the employer, the failure to complete the resignation procedures due to extended leave due to epidemic prevention and control will not affect the legal validity of the employee's application for resignation.

(1) Legal application of force majeure

1. Policy points

On February 10 this year, the Legal Affairs Committee of the National People’s Congress determined that the COVID-19 epidemic was force majeure.

The so-called force majeure refers to objective circumstances that cannot be foreseen, unavoidable and insurmountable when the contract is concluded.

Force majeure is a statutory exemption clause in civil law.

2. Problems

Some regional court documents proposed that the force majeure provisions of the "General Principles of the Civil Law" should apply to the performance, rescission, and termination of labor contracts.

3. Basis for handling

The Ministry of Human Resources and Social Security, the Supreme People's Court and other seven departments have issued the "Opinions on Properly Handling Issues Related to Labor Relations During the Epidemic" (issued by the Ministry of Human Resources and Social Security [ 2020] No. 17 (hereinafter referred to as Document No. 17) stipulates:

"If the original labor contract is indeed unable to be performed due to the impact of the epidemic, the practice of temporarily suspending the performance of the labor contract shall not be adopted. The enterprise and the workers shall reach an agreement through consultation. The labor contract can be modified in accordance with the law. "

Therefore, the parties to civil contracts affected by the epidemic should apply the force majeure clause in accordance with the law, but the parties to the labor contract shall not apply and shall not suspend the performance of the labor contract.

The main reason is that force majeure is not an applicable clause in the labor law. The reason why the labor law does not introduce a force majeure clause is that the labor relationship is a subordinate and unequal relationship, unlike a civil contract, which is between two equal subjects. relationship between.

Labor law has social legal attributes that are different from civil law. If the employer is exempted from liability due to force majeure, it will directly affect the worker's right to survival.

Some regions have provisions on the suspension of labor contracts in documents, but these provisions are only for individual cases and lack the basis of higher-level laws for wide-scale application.

For example: Document No. 309 of the Ministry of Labor in 1995 stipulates that the performance of the labor contract shall be temporarily suspended during the period when a worker is detained, detained or arrested by the public security organs for suspected illegal crimes.

Answers to several questions on cases involving epidemic disputes jointly issued by the Guangdong Provincial Department of Human Resources and Social Security and the Higher People’s Court clearly stated that if both parties fail to reach an agreement, the employer shall, in accordance with Articles 40 and 4 of the Labor Contract Law, Article 11 stipulates that when a labor contract is terminated, economic compensation shall be paid to the employee in accordance with Articles 46 and 47 of the Labor Contract Law.

(The above provisions are in line with the spirit of the Labor Contract Law's "significant changes in objective circumstances". In this case, the employer can change the labor contract, but must provide the employee with corresponding economic compensation)

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(2) Labor Contract

1. Policy Points

First, enterprises affected by the epidemic and the workers they recruit cannot promptly conclude or renew written labor contracts in accordance with the law. , the time for concluding a written labor contract can be reasonably extended through negotiation.

Second, the employer shall not terminate the employment contract of any person.

Mainly include:

COVID-19 patients, pathogen carriers, suspected COVID-19 patients, asymptomatic infected persons, close contacts, persons quarantined in accordance with the law, or persons from areas with relatively severe epidemics laborers.

For the above-mentioned personnel, if the labor contract expires, it will be postponed until the expiration of the worker’s isolation treatment period, medical observation period, isolation period or the end of the emergency measures taken by the government.

Third, if an enterprise is qualified to resume work and refuses to return to work for workers who are unwilling to return to work after invalid persuasion or other unreasonable reasons, the enterprise may comply with Article 39 of the Labor Contract Law Item (2) stipulates that labor contracts with employees shall be terminated in accordance with the rules and regulations formulated in accordance with the law.

2. Problems

Documents from the human resources and social security departments in quite some areas stipulate that the persons who employers are not allowed to terminate or terminate labor contracts do not include "pathogen carriers and asymptomatic infections."

3. Basis for processing

First, according to the interpretation standards of Document No. 17 and the relevant labor relations policies of the Ministry of Human Resources and Social Security, the relevant personnel are included in the scope of the labor contract that is not allowed to be terminated or terminated. .

Second, the employer can terminate the labor contract if the employee has the following circumstances.

For example: The Guangdong Provincial Department of Human Resources and Social Security and the High People’s Court jointly issued a clear answer to the issue of handling epidemic-related disputes. Employers require workers to go to areas where the epidemic was originally severe but have been determined to be low-risk. If an employee refuses to obey without legitimate reasons when working in a regional area or on a business trip, the employer has the right to handle the matter in accordance with laws, regulations, labor contracts, or rules and regulations.

If the labor contract can be terminated, the employer shall terminate the labor contract in accordance with the law.

The third is to use caution in Article 38, Item (2) of the Labor Contract Law, "Failure to pay labor remuneration in full and on time" and Item (3), "Failure to pay social insurance for workers in accordance with the law." "Fee" regulations generally do not support workers' demands for the termination of labor contracts and the payment of economic compensation.

(3) Medical treatment period

1. Policy points

The isolation and treatment period or medical treatment period for patients with new coronavirus pneumonia, pathogen carriers, suspected patients, and close contacts The observation period is not counted as the medical period.

2. Problems

Documents issued by the human resources and social security departments in some regions proposed that the isolation and treatment period for patients with new coronavirus pneumonia should be included in the medical period.

3. Basis for processing

According to the interpretation standards of the labor relations policies of the Ministry of Human Resources and Social Security, the isolation and treatment period of patients with new coronavirus pneumonia cannot be included in the medical period.

Main reasons:

During the period of isolation and treatment, it is a mandatory emergency measure taken by the government. The worker’s inability to provide normal work is not due to his or her ability, and does not comply with the "Enterprise Sickness or Non-Disease" "Provisions on Medical Period for Work-related Injuries", workers should not bear the consequences of the medical period being occupied.

(4) "Negotiation" in annual leave

1. Policy points

Enterprises can negotiate with employees to use paid annual leave and grant it according to work needs Make overall arrangements.

2. Problems

In practice, some employers negotiate with employees on the use of paid annual leave, and there are "*** single decisions" or "** *discussion*resolution" confusion.

3. Basis for processing

The arrangement of paid annual leave shall be subject to "one-stop decision-making".

According to the provisions of Article 5, Paragraph 1 of the "Regulations on Paid Annual Leave for Employees", the provisions of Article 9 of the "Implementation Measures for Enterprise Employees' Paid Annual Leave" and the Ministry of Human Resources and Social Security and other three parties 8 Document No. 1 stipulates that companies can make overall arrangements for annual leave regardless of whether workers agree or not. "Consultation with employees" only regulates the decision-making process and does not affect the company's unilateral decision-making power.

The COVID-19 epidemic is still complex and severe, the "war against the epidemic" is not over yet, and protection will continue. I hope everyone will continue to maintain a high degree of protection awareness and do a good job in epidemic prevention.