Q&A on dealing with hot topic labor disputes amid lockdown

Targeting labor relations disputes amid the ongoing citywide lockdown caused by COVID-19, Shanghai High People's Court and the Human Resources and Social Security Bureau have jointly released answers to some hot issue questions.

Q: What principles should be followed in solving labor disputes in relation to the COVID-19 pandemic?

A: They should balance the needs of both employees and employers and try to figure out a way to amicably solve problems through negotiation.

Q: Amid the lockdown period, when an employer revises or applies rules and regulations for major matters that directly relate to the vital interests of workers, how does the employer undertake democratic consultation and notification procedures?

A: Employers can solicit opinions from the labor union about big changes that impact workers' vital interests and how these affect relevant rules and regulations. These changes might include suspension of work and production, change of pay for labor, adjustment of work methods and hours, job rotation and other relevant plans. This consultation can be done via e-mails, WeChat groups and Office Automation (OA).

After the changes have been approved, they should inform the workers.

Q: Affected by COIVD-19 pandemic control and prevention measures, how should the legal consequences of an employer's failure to conclude or renew a written labor contract with an employee in a timely manner be determined?

A: A digital version of a contract has the same legal effect as a hard copy printed version. Also, both parties can postpone the contract finalization to a suitable time via negotiation.

Q: If a worker is confirmed to be a patient with COVID-19, an asymptomatic case, or a close contact, how should the employer pay their wages during their treatment or medical quarantine period?

A: If the employee became infected or is identified as a close contact due to reasons that cannot be attributable to themselves, the employer should pay their wages as usual.

Q: If a worker is unable to work normally due to the pandemic or the pandemic prevention and control measures, how should the employer pay the worker's wages?

A: Three types of solutions are applicable in these circumstances.

First, if the employee can work at home, they should be paid normally.

Second, if the employee cannot work at home, they can initially use their annual vacation time or corporate welfare vacation time.

Third, apart from these two situations, the employee should be paid according to the related laws and terms of their labor contract.

Q: If the employer has difficulties in maintaining production and operations due to pandemic, can the employee's wages be delayed?

A: Yes, but no later than a month.

Q: How should the issue be resolved if the employer has difficulty in paying workers due to the pandemic, and the workers asked the employer to cancel the labor contract and pay compensation?

A: Normally, employers and employees should solve the dispute via negotiation and continue to operate under the terms of the contract. If the employees persist with their claims, basically, they are not entitled to get compensation.

Q: If an employee refuses to work at home and asks the employer to dismiss the labor contract and pay compensation, what is the solution?

A: After reasonable negotiation, if the employee insists on the contract being cancelled and compensation be paid, the latter requirement is not supported.

Q: For dispatch workers who are confirmed to have COVID-19 or identified as close contacts, as well as dispatch workers who cannot provide normal labor due to the impact of the pandemic, can they be sent back to the dispatching unit?

A: No.

Q: During the pandemic prevention and control period, if an employee is placed under investigation for alleged criminal acts or receives administrative punishments, such as public security detention for not following the epidemic prevention and control measures, can the employer terminate the labor contract?

A: Yes.

Q: How can protection of the legal rights and interests of workers who are transferred under the "shared employment" model during the pandemic be strengthened?

A: The three parties – sharing side, shared side and shared workers – can sign an agreement about the shared employment in terms of job position, type of work, working hours, labor remuneration settlement method and cycle, labor protection conditions, rest and vacation, and etc., to fully protect the interest of shared workers.

Q: Affected by the pandemic, how should the statute of limitations for arbitration or the period of litigation for labor disputes be determined? What should the parties do if they are unable to normally participate in relevant arbitration or litigation activities?

A: The arbitration or litigation could be postponed or suspended according to the relevant rules and laws.