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Chinese Labor Law During COVID-19 Part 1

Jun 11, 2020

 

As the epidemic now pandemic is sweeping China and the world, this unfortunate event brings the planet to a halt and creates many unprecedented issues. One main concern is labor, in these difficult times, how to protect the labor rights of our fellow laborers whilst also supporting enterprises’ survival? This is truly a fine line for legislators, the situation is terrible for everyone and employees require protection but if there are no enterprises, then labor rights do not matter. This article will explore how the People’s Republic of China manage this delicate balancing act. As per usual, my article aims to provide a summary as labor law is local and complex. In many cases, the new regulations surrounding COVID-19 are not very clear in terms of practical implementation, however, throughout the text I will share links to other in-depth articles by River Delta Law Firm for the readers who wish to have a better understanding of specific issues. This first article of two will explore prevention and control.


Prevention and Control

China is currently into a “Prevention and Control” period and following the extended Lunar New Year national holiday was the resumption of work.

Thus, for employing units who have resumed operations, to reduce legal risks and for societal duty, it is crucial to ensure compliance with prevention and control requirements. Some general principles related to prevention and control can be found in the Law of the People’s Republic of China on Prevention and Treatment of Infectious Diseases, such as


“The State supports and encourages units and individuals to participate in the work of preventing and treating infectious diseases.”[1] and;


“All units and individuals within the territory of the People's Republic of China shall accept the preventive and control measures taken by disease prevention and control institutions and medical agencies for investigation, testing, collection of samples of infectious diseases and for isolated treatment of such diseases, and they shall provide truthful information about the diseases...”[2]


More precise information on prevention and control for companies can be found in the Notice of the COVID-19 Joint Prevention and Control Mechanism of the Sate Council on the Promulgation of Guidelines for Enterprises and Public Institution to Take Measures on the Epidemic Prevention and Control During Work and Production Resumption (Guo Fa Ming Dian (2020) No. 4) (Hereinafter Notice No. 4). The Notice No. 4 provides four categories of mechanisms:

1. Strengthen the monitoring of employees’ health,

2. properly prevent and control the epidemic in the workplace,

3. guide employees in personal protection and

4. properly handle abnormal cases.


1.1 Strengthen the monitoring of employees’ health

The company has to conduct health management for its employees such as learning their travel history and carrying out the relevant required health management (such as isolation at home or in medical facilities). Company has to set up a reporting phone line to report suspicious symptoms and report to local authorities.


1.2 Properly prevent and control the epidemic in the workplace

This section is the largest as it encompasses many aspects such as:

  • Proper management of exit and entry, it is strongly recommended to keep archives of exit and entry. It is also recommended to suspend the common practice of fingerprint attendance system. Temperature check is required at entrance, and a normal temperature is needed to enter. The Notice No. 4 also requests to reduce “outsider” of the company as much as possible.
  • Keeping the workplace ventilated, ideally with natural airflow, and to have air exhaust directly outside.
  • Have available handwashing station or disinfectant as well as necessary equipment to wash work stations.
  • To clean and disinfect workplace and living places frequently (i.e., dormitories) and have a designated individual to disinfect regularly touched parts (i.e., door knobs, elevator buttons, etc.).



River Delta Law Firm handwashing and medical care kit


  • Improve the management of gatherings and other group activities, a common term would be social distancing. From a general approach, the employer should guide employees to reduce group gatherings. The Notice No. 4 also encourages video conference to avoid in-person meetings, or at least reduce the meetings length or the number of attendees.This section also quickly mentions some flexible work arrangements as a way to reduce gathering at the workplace; the topic will be discussed in the second part of this article.
  • Improve the management of group meals for employees such as staggering the meal time, properly disinfect reusable tableware or use disposable tableware. This section also states to use separation boxes if possible and to avoid siting face-to-face or talk during meals.



Pictures of the arrangement stated above were widely shared of the internet in the beginning of the resumption of work. Source: Global Time.


  • Provide medical assistance thought the company’s infirmary. Alternatively, have the necessary drugs and protective material in addition to cooperate with the authorities.
  • Standardize waste collection and disposal. Simply put, all those efforts wearing masks and the likes are partly wasted if their disposal is also not properly managed.

1.3 Guide employees in personal protection

The employer must promote factual knowledge on prevention and control to ensure the staff understand and cooperate. The company guides employees into proper habits such as washing hands and wearing protective gear correctly.


1.4 Properly handle abnormal cases

This section is both preventive and proactive. The person in charge of the entity should take the primary responsibility for the prevention and control of the epidemic at the workplace and to establish a system for prevention but also for emergencies. Under the primary responsible, the company should clarify and document the responsibilities surrounding the prevention and control. The enterprises must also set up isolation areas which should be used for a suspected or confirmed case while relevant medical treatments are being arranged.

Finally, upon discovery of a case, even if only suspicious symptoms, the company should lock down and disinfect the relevant area under professional guidance.


Some of these tasks may seem daunting or even impossible for some companies. The employing unit should do his best to follow the above and adapt it to its situation. Some alternatives are already provided, such as having a proper medical and hand disinfectant kit rather than handwashing station and infirmary. In other cases, it might be the building management that will handle some matters, such as ventilation or management of exit and entry. In these cases, company should contact their building management to ensure a clear understanding between both parties on the division of responsibilities.

Additionally, in case of doubt on local rules or applications of prevention and control measures specific to the company, it is very strongly encouraged to contact local authorities for guidance and to follow their advice. Whilst we believe a “best-effort” approach is significant in judging company's liabilities, to increase compliance and reduce legal risks, we heavily recommend contacting authorities.


Assuming a company do not care nor follow the measures (in which case, we call into question its morality), what would be the liabilities?


The Supreme Court answered this question by stating that anyone who refuses to implement the prevention and control measures thus resulting in transmission or serious danger of transmission will be convicted and punished in accordance to the Criminal Law of the PRC. The relevant article of the Criminal Law states less than 3 years of imprisonment or criminal detention and 3 to 7 years for serious cases. Additionally, the situation can be considered a lack of work safety and if an employee is infected at work, it may be deemed as a work accident.


The Work Safety Law of the People’s Republic of China (2014 Amendment) stipulates possible liabilities for the business and the primary person in charge for not respecting work safety management such as being ordered to rectify the situation, suspended production/business until rectification, and flat fines.

In case of Work Accident the fines and consequences can be significantly higher for the company and the person in charge. For the person in charge, he shall be removed from office as disciplinary action and may be subject to criminal liabilities. The person in charge will be banned from the role of "person in charge" for five years and in serious cases for life in the same industry. This list of liabilities is simplified as this article is a summary on COVID-19, for a deep dive on work accident, I suggest you read River Delta’s article “Is it a Work Accident if an Employee is Infected with COVID-19 During Resumption of Work?” (also available in Mandarin ).

To conclude, the COVID-19 pandemic is bad for everyone, countries, employees, companies, nobody is exempt from the negative impact. In an effort to control the outbreak, China has stipulated control and prevention obligations for individuals and company.


As a final reminder, this article is a summary of employment law during COVID-19 and lacks in practicality. Even if the length of this article is increased by tenfold, it would still not be nearly enough; read your local regulations and contact your local authorities.

On a last note, laws and regulations aside, I urge employees and employers to act reasonably and with empathy towards each other, even if the situation is tense, cooperation will carry you much further.


Note:

1.Law of the People’s Republic of China on Prevention and Treatment of Infectious Diseases Art. 9

2.Law of the People’s Republic of China on Prevention and Treatment of Infectious Diseases Art. 12


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