China: Back To Business Guide – Employment

Back to business FAQs

1. Are there any legal requirements that employers must comply with before they send their people back to work and reopen physical premises?

The requirements to reopen physical premises vary among different locations and may change over time. Some of the cities that have stricter requirements need approval from the disease control authorities while other locations may only require notification or filing with building management. Employers may need to ask employees to fill-in certain forms to self-declare health status and contact/travel history. In Beijing and Shanghai, for example, the self-declaration is done through an app in individuals' mobile phones, which needs to be scanned when entering buildings/office premises.

2. As we reopen post-COVID-19 lockdown, what are the health and safety obligations employers need to pay attention to around the physical premises?

The detailed requirements are changing over time. Some locations are stricter than others, e.g. generally speaking Beijing is stricter than Shanghai. Within a city, even different buildings may enforce the requirements differently. At the time of publication, in general, employers are required to: (1) check the employee's temperature daily; (2) set an isolation area in the work place; (3) if the employee has suspected symptoms, the company shall require him/her to be isolated in the isolation area; (4) report to the department of disease control; (5) assist the employee with symptoms to go to the nearest infectious disease hospital; (6) close and sterilize related areas; (7) prohibit other people from entering infected areas; and (8) cooperate with the government's disease control work, including assistance on tracking close contacts amid the outbreak of COVID-19.

Some locations still require employees to wear face masks while working in the office. In addition, employers may be required to provide education/communication to its employees. For example, sending disease control materials, distributing booklets, reminding employees to cooperate with the company's management plan against coronavirus, providing online training to its employees on control of COVID- 19.

3. Can employers ask employees to take medical tests or show test results or medical certificates before returning to work?

Companies are allowed to collect information about their employees' travel history, travel plans, health conditions and close contacts of suspected patients during the outbreak period with the consent of the employee. But the company should keep the information confidential and not use them for other purposes. Employers should follow the principles of necessity and minimization when collecting and processing personal data. Avoid disclosing the personal information without the consent of the employees. Moreover, employers need to implement strict technical and management measures to prevent privacy breaches or misuse of personal information, ensuring the personal data collected for the purpose of controlling the disease and will not be used for any other purpose.

4. What if employees refuse to take the requested medical tests or provide the requested medical test results or certificates before returning to work?

The company may refuse to allow the employee back to the physical premises. Depending on the circumstances, the company may be permitted to impose disciplinary action.

5. Should we divide people in groups and stagger their return to work?

Depending on the location, social distancing requirements may still be in place. For example, up to a certain number of people per square meter in office buildings. If the company is over this limit, it will need to stagger the presence of its employees. The company may first send a skeleton team of people who can help with tasks in the office that cannot be done from home, e.g. helping with printing/mailing. Nevertheless, even in locations where the employer can fully resume physical premises, the government encourages people to avoid start and finish during peak hours.

6. If there are employees who still need to stay at home due to school closures or to look after sick relatives, is the employer obliged to pay them?

Generally, no. In Beijing, if an employee would like to take care of his/her children at home, he/she shall apply for leave from the company. The company is entitled to arrange the employee to work from home, or arrange the employee to work flexibly during this period, or arrange the employee to use his/her annual leave or rest days (Sunday and Saturday) in this calendar year.

7. If there are employees who still fear contracting COVID-19, can he/she refuse to show up to work in the office?

If an employer requires the employee to come to office to work, the employee is not entitled to refuse, unless he/she is isolated according to the local quarantine requirements. If the employee refuses to come to work without a sufficient reason but a personal concern, the employer needs to communicate with the employee on his/her concern and choose alternative approaches. It may impose disciplinary action depending on the circumstances.

8. Can an employee refuse to attend a business meeting with someone from out of town or overseas?

It needs to be discussed on a case by case basis. If the person from out of town or overseas has completed his quarantine period according to local rules or there is no reasonable suspicion that this person is a COVID-19 patient, suspected patient or close contact thereof, the employee could not refuse to attend the business meeting.

If the employee's personal concern does make sense like the person from out of town presents symptoms, the company shall cancel the business meeting and report the suspected case to local disease prevention and control department.

9. As business resumes, what are the things to pay attention to when asking people to travel for business?

Many overseas locations are high risk. In terms of domestic travel, there are almost zero new infected cases except imported ones. Various cities no longer require people from low risk areas inside China to be on quarantine. However, cities like Beijing still require people who return after travelling out of town to go into quarantine. The company will need to pay normal wages if it asks employees to travel and they need to quarantine as a result.

10. Can employers adopt flexible work options such as imposing part time or shorter hours?

Revised working options, i.e., imposing part time or shorter working hours, are not permissible without the employee's written consent, if this is followed by a corresponding decrease in payments. Legally, as long as the company can obtain the individual consent, there are no restrictions/limits on the payment and length of the time periods during which the employees can be under this type of arrangements.

11. Can a company require employees to notify the company in the event that they test positive for COVID-19 or have symptoms of COVID-19?

Yes. The employer is obligated to promptly report the infected cases / or individual with symptoms to the nearby disease prevention and control institution or medical agency. However, without the person's consent, the employer shall not publish the person's name, age, ID number, phone number, address and other personal information to public. The disclosure shall only be limited to the necessary details. Employees who have to go through quarantine, medical treatment or medical observation due to being COVID-19 patients, suspected patients, close contacts with a confirmed case or due to travel history are entitled to normal wages.

12. Is it possible to reduce the salary of the employees to offset the lost profitability due to effects of COVID-19?

This is not permissible without the individual employee's consent. The company needs to have statutory grounds to unilaterally reduce the employee's salary, like position adjustments due to legal reasons, suspension of production or business due to difficulties, etc.. Otherwise, we would suggest employers obtain the employee's written consent before salary reduction.

13. Is it possible to temporarily suspend work for employees due to the business downturn as a result of COVID-19?

The employer may temporarily suspend all of its operations due to operational difficulties incurred by COVID-19 according to local rules and judicial practice. The interpretation of this rule is not consistent across different locations. That said, for those who are eligible, if the business suspension lasts for longer than a payroll cycle, after the first month, the employer can pay those employees who continue not to work only the living allowances. This shall be equal to the local minimum wages or a certain percentage of the local minimum wages, subject to local wages regulations.

14. Can employers request employees to take annual leave due to the business downturn as a result of COVID-19?

An employer is entitled to require employees to take unused annual leave in this calendar year, but it is recommended to consult with employees beforehand.

15. Can employers ask employee to take unpaid leave?

This is not permissible without an individual's consent. However, the company may pay significantly reduced salary while the employees are not required to work during the so-called "suspension of production or business" periods.

16. In terms of employee payroll costs, are there any government assistance program / relief measures to assist employers that continue to do business?

For small and medium-sized enterprises with few or zero layoffs, the maximum return of unemployment insurance premiums could be 100% of the amount paid in the previous year. In addition, there are other assistance measures imposed by the government. For instance, social insurance concessions - medium, small and micro-enterprises outside Hubei are exempt from making the employer's portion of contributions to pension insurance, unemployment insurance and work-related injury insurance from February to June 2020, while large enterprises outside Hubei need to pay only half of their normal contributions from February to April 2020; for enterprises inside Hubei the amount of three social insurances payable by the employer may be exempted for no more than 5 months starting from February 2020; the amount of medical insurance payable by employer is reduced to half for no more than 5 months starting from February 2020; deferring the adjustment of the social insurance contribution base for the year of 2020; and extend the validity period of the existing reduced rate of contributions for certain types of social insurance schemes. There might be potential reliefs at city level and local rules and practice shall be checked.

New Legislation

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.