In the New Year of the Rat, a sudden outbreak of pneumonia has brought us the longest Spring Festival holiday in history, which can allow us to spend time with our family day and night and enjoy the joy brought by family affection. On January 26, 2020, the State Council issued the "Notice on Extending the 2020 Spring Festival Holiday", extending the 2020 Spring Festival Holiday to February 2 (ninth day of the first lunar month, Sunday), and starting from February 3 (Monday). On January 27, 2020, the Shanghai Municipal People's Government issued the "Notice on Delaying the Resumption of Work in the City and the Opening of Schools in Schools", requiring enterprises to resume work no earlier than 24:00 on February 9.
The above notice mainly involves holidays and working hours from January 31 to February 1, 2020 (February 1 is Saturday but is adjusted to a working day due to adjustments and holidays and February 3 is Sunday), and from February 3 to February 9 (February 8 is Saturday and February 9 is Sunday).
We have sorted out six related issues for your reference.
1. What kind of holiday is the extended holiday?
Extending the Spring Festival holiday is a special arrangement made to better prevent and control the pneumonia epidemic and does not belong to institutional holidays; so what kind of holiday does this temporary arrangement of holiday belong to in labor law? There are generally three views:
① is legal holiday . The Spring Festival holiday is a statutory holiday, and the extension of the Spring Festival holiday is a holiday for all citizens to take a vacation, which is a temporary increase in the statutory holiday; from January 31 to February 1 of the extension of the Spring Festival holiday, the company shall pay employees' wages.
② is to adjust the rest. After the Spring Festival holiday is over, employees need to use the rest days to offset the extended holiday time; employees enjoy the holiday period, the company does not need to pay wages. If the company works during the delayed holiday, it shall arrange compensatory leave. If the compensatory leave is not possible, labor remuneration shall be paid at a standard of 200%. On January 27, the Shanghai Municipal Human Resources and Social Security Bureau issued a notice that employees who provide normal labor during the extended Spring Festival holiday shall arrange compensatory leave or pay overtime wages as required.
③ is a temporary increase in unpaid leave. Statutory holidays should be stipulated by the State Council in the "National New Year and Anniversary Holiday Measures", but the extended Spring Festival holiday this time does not belong to the holidays stipulated in the Measures, and there is no basis for deeming as statutory holidays; if deemed as a relocation, the State Council notice will clarify the time schedule for relocation and leave, and will not be directly expressed as "extended holidays"; therefore, it is relatively more appropriate to deem as a temporary increase in unpaid holidays.
2. How to pay wages if a company arranges employees to work during the extended holiday period?
At present, neither the notice of the State Council nor the notice of the Shanghai Municipal Government involves this issue. You can look at it from the perspective of following previous practices.
September 3, 2015, to commemorate the 70th anniversary of the victory of the Chinese People's War of Resistance Against Japanese Aggression and the World Anti-Fascist War, the whole country will have one day off. The State Council's "Notice on the Resumption of Holidays on the 70th Anniversary of the Victory of the Chinese People's War of Resistance Against Japanese Aggression and the World Anti-Fascist War" (Guofadian [2015] No. 1) made a Resumption of this: Resumption of Holidays from September 3 to 5, a total of 3 days. Among them, the holiday will be held on September 3 (Thursday), the holiday will be adjusted on September 4 (Friday), and the work will be held on September 6 (Sunday).
Regarding the issue of wage calculation for workers' work during the holiday on September 3, 2015, the Ministry of Human Resources and Social Security's "Notice on the Issues of wage calculation for workers' work during the holiday on September 3, 2015" (Ministry of Human Resources and Social Security [2015] No. 74) further clarified that if workers are arranged to work during the holiday on September 3, they should pay wages and make up for leave; if compensatory leave cannot be arranged, wages and remuneration should be paid at no less than 200% of the worker's own daily or hourly wage standard.
can be seen that the Ministry of Human Resources and Social Security refers to the overtime regulations on rest days to handle the work rules on September 3.
During the epidemic prevention and control of pneumonia, the Ministry of Human Resources and Social Security issued the "Notice on Properly Handling Labor Relations Issues During the Prevention and Control of Pneumonia Epidemic by the New Coronavirus Infection" on January 24. At that time, the State Council did not issue a notice to extend the Spring Festival holiday, so the notice of the Ministry of Human Resources and Social Security did not cover this issue.
htmlOn January 27, the Shanghai Municipal Human Resources and Social Security Bureau issued the "Notice on Implementing Human Resources and Social Security Support and Guarantee Measures in Responding to the New Coronavirus Pneumonia Epidemic", which clearly stated that during the extension of the Spring Festival holiday in 2020, employees who cannot take leave due to epidemic prevention and control should arrange compensatory leave in accordance with the provisions of the Labor Law of the People's Republic of China, and wages and remuneration for those who have not taken leave should be implemented in accordance with relevant policies.Regarding the issue of compensatory leave, Article 44 (2) of the Labor Law stipulates that if workers are arranged on rest days, they cannot arrange for compensatory leave, and pay wages of no less than 200% of their wages.
can be seen that Shanghai refers to the overtime regulations on rest days to handle the rules for extending the Spring Festival holiday: those who work during the extended Spring Festival holiday are deemed to be a rest day work, and workers will be arranged first for compensatory leave; if workers cannot be arranged for compensatory leave, the company shall pay a wage of no less than 200% of the salary.
3. If the company arranges employees to work during the extended period of the Spring Festival holiday in accordance with the law due to special needs, will the employees have the obligation to obey the work arrangements?
If the company needs to arrange work during the Spring Festival holiday, it is generally considered to be an extension of working hours (commonly known as "overtime"); according to Article 41 of the Labor Law, due to production and operation needs, employers can extend working hours (not the workers' consent) after consultation with the trade union and the workers' .
Usually, employees should obey the company's work arrangements, which is the basic labor obligation of employees. It is generally believed that overtime arrangements arranged by the company are equivalent to work arrangements for statutory working hours, and employees should obey work arrangements; there is no difference between employees' work arrangements for overtime working hours and work arrangements for statutory working hours. If the company punishes employees on the grounds of disobeying work arrangements in accordance with the rules and regulations.
4. Are companies allowed to make flexible arrangements and handling of extended holidays?
In order to facilitate employees to return home and work during the Spring Festival, some companies generally "extend" their holidays on their own during the Spring Festival holiday, such as early holidays, postponing resumption of work, encouraging employees to take annual leave, etc. These flexible vacation arrangements of the company are self-arranged on the basis of statutory holidays. Generally, it is conducive to employees' vacations. They are not contrary to the law and should be encouraged and advocated. These flexible holiday arrangements have encountered the notice from the State Council to extend the Spring Festival holiday. How should they be dealt with?
① If wages are not paid during the extra holiday, refer to the above-mentioned "rest days" rules, the company's original holiday arrangements will be almost unaffected.
②If the extra holidays are paid leave arranged by the company, it is an internal welfare of the company and will not be affected.
③If an employee applies for paid annual leave, the company is best to give employees the right to choose: the employee can withdraw the annual leave application and change it to taking "extended leave"; the employee can also continue to take annual leave.
5. Will extending the Spring Festival holiday affect the annual average system working hours and salary conversion?
In fact, in essence, extending the working hours of the Spring Festival holiday and the annual system are two completely different areas of problems. Extending the Spring Festival holiday is a special temporary vacation, which is a problem in the micro field; and annual system working hours are the need for statistical working hours and is a problem in the macro field; since it is a problem in two different fields, it generally does not affect each other.
Although extending the Spring Festival holiday will not affect the annual average system working hours and salary conversion; however, a public account put forward expert opinions, believing that the system working hours in 2020 will vary due to the extension of the Spring Festival holiday. For example, the formula for calculating the number of working days in the system proposed by experts in 2020 is: 365 days - 106 days (off days) - 11 days (statutory holidays) = 248 days.
The former Ministry of Labor and Social Security "Notice on the Conversion of the Monthly Average Working Hours and Wages for Employees" (Ministry of Labor and Social Security [2008] No. 3) stipulates the average working days of employees throughout the year and the conversion method for wages for employees, and clearly states that the average working days of the annual system are 250 days. This method will not be adjusted every year; if, according to the calculation method of the above experts, 2020 is a leap year, the number of days of the system this year should be: 366 days - 106 days - 11 days = 249 days.
6. From February 3 to February 9, 2020, enterprises in Shanghai stopped working. How should employees’ wages be paid?
On January 27, 2020, the Shanghai Municipal People's Government took emergency measures in accordance with the "Infectious Disease Prevention and Control Law" and issued the "Notice on Delaying the Resumption of Work of Enterprises in the City and the Opening of Schools in Schools", requiring enterprises in Shanghai to delay the resumption of work until February 9, 2020.
There are three ways to choose from the processing and identification period from February 3 to February 9: First, it is determined that it is a suspension of work, and the company shall pay wages during the suspension of work; second, it is determined that it is a rest day, and the company shall not need to pay wages during this period; third, it is determined that it is a newly paid leave, and the company shall pay wages during this period.
1. Determined as suspension of work
Regarding wage payment during suspension of work, the regulations of the Ministry of Human Resources and Social Security and Shanghai are slightly different.
Notice of the Ministry of Human Resources and Social Security stipulates that if an enterprise suspends work and production within one wage payment cycle, the enterprise shall pay employees' wages according to the standards specified in labor contract . If more than one wage payment cycle is exceeded, if the employee provides normal labor, the wages paid to the employee by the enterprise shall not be lower than the local minimum wage standard. If employees do not provide normal labor, the enterprise shall pay living expenses, and the living expenses standards shall be implemented in accordance with the measures stipulated by each province, autonomous region, and municipality directly under the Central Government.
Shanghai Municipal Human Resources and Social Security Bureau Notice stipulates: enterprises require employees to postpone their resumption of work due to the impact of the epidemic. If they require employees to postpone their resumption of work within one wage payment cycle, they should pay employees' wages according to the standards stipulated in the labor contract; if they exceed one wage payment cycle, the wages paid shall not be lower than the city's minimum wage standard.
The suspension time stipulated in this Shanghai notice shall not exceed one month (one wage payment cycle); according to the regulations, enterprises shall pay wages according to the standards stipulated in the labor contract; however, in practice, there are generally two problems:
①Do enterprises have the obligation to pay wages during this suspension of work in Shanghai?
Article 12 of the former Ministry of Labor's "Interim Provisions on Wage Payment" (Ministry of Labor [1994] No. 489) stipulates that if the unit suspends work or production within one wage payment cycle without the reasons of the worker, the employer shall pay the worker's wages according to the standards stipulated in the labor contract.
The suspension of work in Shanghai enterprises is not a worker reason, but it cannot be simply considered as a reason for the enterprise. Instead, the enterprise "passively" shut down work according to the requirements of the government's implementation of emergency measures. The Ministry of Human Resources and Social Security notice did not distinguish the reasons for the suspension of work. The Shanghai notice clearly stated that "enterprises require employees to postpone their resumption of work due to the impact of the epidemic", which made this issue even more unclear.
If we look at common sense, this suspension of work in Shanghai is not an active suspension of work due to corporate reasons. The enterprise has already suffered economic losses from the suspension, and it seems that it lacks certain rationality to require the enterprise to bear the wages during the suspension period.
②If the enterprise should pay wages, what standard should it be paid? The issue of
has different understandings in practice. What exactly does the (wage) standard stipulated in the labor contract refer to? Only the basic salary stipulated in the written labor contract under normal working conditions? Or is it the actual salary paid by the company? Does it mean the entire salary obtained by the employee? Or does it mean that the basic (job) salary that includes the performance salary part is excluded? Or does it refer to the salary income of employees under normal attendance? Or does it refer to the wage standard for suspension of work specifically agreed in the labor contract?
2. Determined as a rest day
htmlOn January 28, the latest answer from the Shanghai Municipal Human Resources and Social Security Bureau: The delay in resumption of work is due to the needs of epidemic prevention and control, and these days are rest days.determines the delayed resumption period as a rest day, and the company does not need to pay employees' wages; if employees are arranged to work, the company shall arrange for employees to take compensatory leave. If the company cannot take compensatory leave, labor remuneration shall be paid at a 200% standard.
is determined as a rest day rather than a suspension of work, which can prevent some enterprises from resuming work early and affecting epidemic prevention and control, and can reduce the cost of shutdown of work in enterprises (wages are required to be paid during the suspension of work); however, can the company require employees to make up shifts after resuming work?
From common sense, since February 3 to February 9 is a rest day, it can be regarded as a rest adjustment, and the company can ask employees to use the subsequent statutory rest day to offset the absent; however, the answer from the Shanghai Municipal Human Resources and Social Security Bureau proposes: If the company arranges work during the delay in resumption of work, it must arrange for compensatory leave; that is, those who go to work must have compensatory leave, so those who rest do not need to "repay". If this is a new rest day, will local administrative departments have the right to increase rest day?
htmlOn the afternoon of January 28, the municipal government has clarified the system of review and reporting for early resumption of work, and can only resume work after the government review and approval. Since it is "resumption of work", of course, the corresponding one is "suspension". If it is a rest day, why do you need government approval to go to work on the rest day?3. Determined as paid leave
According to the answer from the Shanghai Municipal Human Resources and Social Security Bureau on January 27: During the delayed resumption of work, for employees who are resting, the enterprise should pay wages according to the standards stipulated in the labor contract.
According to my country's working hours system, rest days are not calculated, that is, rest days are unpaid; since they are considered as rest days, why do enterprises pay wages? Although
, called "rest day", it requires enterprises to pay wages in accordance with the suspension regulations. In fact, it will be stipulated from February 3 to February 7 as "new paid leave" and an innovation in the wage system and working hours system.
