There is a joke rumored on the Internet recently:
"On the 27th, get up, get up, get up, get up, get up, get up, get up, get up, get up, get up, get up, get up, get up, get up, get up, get up, get up, get up, get up, get up, get up, have 12 days left on the holiday"
This joke actually just shows that in the face of the severe epidemic situation, the issuance of these regulations is very hasty, and many regulations will also have many questions worth discussing. Because it is an extraordinary measure in extraordinary times, some regulations are different from what everyone has understood in the past, and there may even be many things that make people feel unfair and unreasonable. Everyone needs to be clear that the purpose of these regulations is to stabilize labor relations, thereby stabilizing social order, and winning the battle against the virus. Some flaws are helpless actions and don’t be too picky.
In order to help the majority of HRs better understand policies, MeetHR invited and organized experts from all walks of life to conduct an online charity sharing session for HRs across the country on "Fighting the Epidemic, HRs Together".
The following is the live broadcast content of our first lecture: Lawyer Liu Jicheng, partner of Beijing Dacheng (Guangzhou) Law Firm, answers to how companies and employees should deal with holiday extension and corporate resumption of work.
1 Does the notice of holiday extension must be implemented? What should be done if the resumption of work notices in some provinces and cities are later than that in the state?
First, the notice of postponing the extension of the holiday must be implemented by enterprises, because according to a special measure issued by laws such as the "Infectious Disease Prevention and Control Law" and the "Emergency Response Law", then this measure must be strictly implemented. If
is not executed, the second question will talk about the consequences. But if your company belongs to a special industry, then it is an exception, such as medical supplies manufacturers. If you do not belong to a special industry and need to resume work early, then according to the practices of various places, some places require you to make special applications and approvals, so we must strictly implement these regulations.
For the resumption of work in some provinces and cities, including Shanghai, Guangdong, Zhejiang, Jiangsu and other places, it is later than the national regulations. This is a local arrangement made by local governments in accordance with the authorization of national laws and the development of local epidemics. This local arrangement is later than the national regulations and must be implemented in accordance with local regulations.
2 What are the consequences if an enterprise wants to resume work early?
We know that according to the "Infectious Disease Prevention and Control Law", when an infectious disease breaks out, the government has the right to take emergency measures: including requiring classes, business, and work. In this case, if the relevant unit refuses to implement such emergency measures, it may lead to criminal liability or administrative liability. According to the provisions of the Public Security Punishment Law, if the order issued by the people's government in an emergency situation, it may be subject to a corresponding administrative penalty of warning, fine or detention.
The Criminal Law also stipulates that if the provisions of the Law on Prevention and Control of Infectious Diseases and cause the spread of Class A infectious diseases or are at risk of transmission, they shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. If the consequences are particularly serious, they shall be sentenced to fixed-term imprisonment of not more than three years but not more than seven years. Therefore, if enterprises do not strictly abide by the regulations issued by local governments to delay resumption of work and cause the spread of infectious diseases, it may constitute criminal liability, and the consequences are particularly serious.
3 What is the nature of extended vacation? How should employees pay their wages if they go to work during this period?
This extended holiday is divided into two sections:
1 is an extension according to the notice of the State Council, from January 31 to February 2, a total of three days. Therefore, for these three days of holidays, the State Council’s regulations make it very clear that if you cannot take a vacation during this period, you should take a compensatory leave or pay 200% of your salary. In other words, the three-day special holiday is handled by referring to the overtime work on the weekend. If you go to work, it is handled by the overtime work on the weekend.This is about the first part of the holiday.
2
2 is the holiday that local governments have extended for holidays. The current nature of this holiday is quite controversial. What we are seeing at present are two approaches: one is Shanghai, which characterizes it as a rest day. The second period of holidays is from February 3 to February 9, so the rest on February 8 and 9 come to Japan is a rest day, so February 3 and 7 are working days, so February 3 to 7 are working days, according to the explanation of the Shanghai Municipal Human Resources and Social Security Bureau, "it is regarded as a rest day, and labor remuneration is paid according to the provisions of the labor contract", and labor remuneration is paid according to the labor contract. People may have different understandings here. Some people think that since it is a rest day and weekend break, it is normal and there is no salary. Does it mean that there are no wages in these few days? I personally think this understanding is wrong. What I understand is very clear here is that paying wages according to the labor contract. That is to say, the 7 days from the 3rd to the 9th are not required to pay wages, including rest days on the 8th and 9th, and also the wages that need to be paid, including the original working days from the 3rd to the 7th. Then the ones that should be paid will be paid, and if you don’t need to pay, you don’t need to pay wages. This is the practice, treating it as a rest day.
There is also a method in Wuxi and Suzhou, which is currently an arrangement for suspension of work. In fact, to a normal understanding, the corresponding word for delaying resumption of work is suspension of work. So normally speaking, many people understand it as a kind of suspension of work before the Shanghai Human Resources and Social Security Bureau explained it. So if the work is suspended, what is the difference between it and the rest day?
The processing of work suspension and rest days is actually no difference for employees who don’t have to go to work, because according to the current documents, these basically require wages, which means paid rest. So what is the difference? The difference is that overtime work. If the treatment of overtime employees is based on the rest day, according to Shanghai regulations, it can be paid for the compensation, but cannot be paid for the overtime wage. If the work is processed according to the suspension, then we know that wages must be paid within one month of suspension, regardless of whether you go to work or not. Therefore, the practice in Suzhou and Wuxi treats it as a shutdown period. The benefits of working and not working during the shutdown period will not change, and wages must be paid normally, and employees who work "encourage enterprises to provide care and rewards in appropriate ways."
will have a lot of questions here.
Question 1: People will feel that they don’t need to go to work, so why do companies need to pay wages? Because we understand that wages are labor remuneration. Only when you provide labor can you get remuneration. Why do you have to pay wages if you don’t provide labor?
I think this issue will be back to the purpose I mentioned earlier. The purpose of our introduction of these emergency measures is to maintain the stability of social order and the stability of labor relations. So in this sense, our special policies may be different from the legal provisions you have understood before, but this is to stabilize the current social order and stabilize the current labor relations, so you have to pay a salary if you don’t go to work.
Question 2: Many people feel that the treatment of going to work and not being able to work seems to be not much different, or it is different from what we have understood before. For example, according to the practice of shutting down work, the salary for work and not working must be paid as required. Some people who work may give rewards, but this kind of care and reward is not mandatory. In other words, if you give it, you can not give it, then there will be unfair situations between employees.
If it is handled as a rest day, such practices like Shanghai will also be unfair. Because Shanghai stipulates that if it is a rest day, you can take a make-up leave in the future, then you don’t have to pay overtime wages. Only those who don’t need to pay overtime wages will be paid overtime wages. This means that some employees may have to repair their work after work. In fact, the number of days they work may not be much different from those of the previous employees, but in fact, they do not receive a higher salary than colleagues who cannot work, so many people will feel unfair, because normally, we work employees twice as much as those who cannot work. Now, even if we pay overtime wages in Shanghai according to the practice of giving overtime wages, it is just that they have twice as much salary than employees who cannot work, and many people will also feel unfair. Why do these unreasonable or unfair situations occur? Because this is a special measure, this is a special situation that may only be encountered once in our lifetime. So many times, we cannot completely put the things we understand in daily life on emergency measures. This is indeed a measure to appease or stabilize social order and stabilize labor relations. The failure to provide labor requires the company to pay wages, which seems to be unfair to the company, but this is still a consequence of a particularly special emergency measure, that is, let the company assume social responsibility within a short period of time. This is my personal understanding of this issue.
Of course, some companies say that my employees work from home, is that okay?
According to the practices in various places, for example, the regulations in Shanghai are very clear. If your employee works from home, he also works remotely. This situation is also regarded as overtime work, and it also needs to pay overtime wages. Therefore, if the company wants employees to work remotely and work from home, it needs to pay overtime wages. If it is not needed, it is just paid according to the original normal wages. Then the company will weigh the trade-offs and whether such an arrangement is needed.
4 How should employees’ wages be paid when companies stop working or production due to the epidemic?
In fact, there are corresponding regulations on wage payment regulations or wage payment methods in various places. When enterprises stop work or stop production, according to the provisions of the "Interim Provisions on Wage Payment" and the Ministry of Human Resources and Social Security's "Notice on Properly Handling Labor Relations Issues During the Prevention and Control of the New Coronavirus Pneumonia Epidemic", it also includes the wage payment methods in various places, etc.: Units are suspended from work or production due to workers (just like this epidemic causes the unit to suspend work or production) within a wage payment cycle, which means that the work has not been suspended for more than one month. This is not a natural month, but it starts from the day you stop work. If it does not exceed one month, then the employer pays wages according to normal standards. If it exceeds one month, then both parties can negotiate to reduce the wage standards.
However, if the worker provides normal labor, the remuneration paid to the worker cannot be lower than the minimum wage. If the labor is not provided, if all of them are on holiday, after one month, the living expenses will be paid according to the living expenses standards in various places. At present, different places are different. For example, in Beijing, Anhui, and Shandong, the minimum wage is 70%, and in Guangdong, Jiangsu, Zhejiang, Henan, Hebei, etc., the minimum wage is 80%. Then, Shanghai and Tianjin are generally not lower than the local minimum wage, so the standards are different in different places.
Whether it is all or partially suspended, this clause applies.
Because the epidemic is indeed serious, there may be some friends asking about how to deal with it in the case of comprehensive timing. I personally understand that comprehensive timing refers to the fact that you are in a timekeeping cycle, such as in a quarter, half a year or a year, and your working hours should not exceed the legal number of hours. If it exceeds it, then the overtime salary will be calculated by processing overtime by 1.5 times.If this kind of shutdown occurs, I think your working hours are actually reduced, so whether you have to pay overtime wages depends on whether it exceeds the number of hours in the entire comprehensive timing cycle. If not, this problem needs not exist.
5 Employees cannot return to work due to traffic control in the next year. Can the unit terminate the labor contract by absent from work?
This issue is based on the provisions of the Ministry of Human Resources and Social Security: If an employee cannot provide normal labor due to the government's quarantine measures or other emergency measures, such as the suspension of transportation, the employee is deemed to provide normal labor and must pay his wages for normal working hours.
So in this case, we cannot handle the work of employees as they cannot arrive on time, but we must also treat it as if they provide labor to pay wages. This is different from our usual operations and understanding. It is because in special circumstances, it is as mentioned earlier that in order to stabilize labor relations and to stabilize social order, enterprises need to assume more social responsibilities, and enterprises need to pay for this, which is also an extraordinary measure in extraordinary times. Although it may be a heavy burden for many companies, there is nothing we can do about this.
So if you can't come back to work due to traffic control and so on, then the company still has to pay wages and cannot be lifted.
6 Employees are being quarantined. How do labor remuneration be paid during the quarantine period?
According to Article 41, Paragraph 2 of the "Law on Prevention and Control of Infectious Diseases": Implement quarantine measures during the quarantine period, and the people's government provides living security for the quarantine personnel. If the quarantine personnel have a work unit, the unit cannot stop paying their work remuneration during the quarantine period. The Ministry of Human Resources and Social Security also made clear provisions in the Notice of Document No. 5 of 2020, that is, if the isolation measures are implemented or other emergency measures are taken, the employees who cannot provide labor must pay their labor remuneration normally.
It should be noted here that some employees may be diagnosed with new pneumonia after being quarantined, so their salary will not be affected during the isolation and treatment. But if he is released from quarantine and during the treatment process, what should his treatment be paid? According to the provisions of our medical period, and the salary during the medical period, these two points are different, that is, the treatment for isolation treatment is different from treatment after he is released from isolation.
During the isolation treatment period, the salary will remain unchanged. If the treatment is released after the isolation measures are lifted, it is in accordance with the provisions of the medical period. The salary during the medical period is generally not less than 80% of the minimum wage according to the contract or local laws.
7 For enterprises that employ in the country, they may have branches in various places. The regulations on resumption of work in different places are different. How should they be dealt with?
According to Article 14 of the "Regulations on the Implementation of the Labor Contract Law", generally speaking, if the place of performance of the labor contract is different from the place of registration of the employer, that is, your company may be registered in Shanghai, but there are dispatched employees in various places. The place of performance of the labor contract is different from the place of registration of the employer, and the minimum wage standard for workers, labor protection, occupational hazard protection, etc., are implemented in accordance with the provisions of the place of performance of the labor contract.
8 What should enterprises deal with the labor contract expired during the employee isolation period?
If the labor contract expires during the employee quarantine period, according to the provisions of the Ministry of Human Resources and Social Security, the labor contract cannot be terminated or terminated in accordance with Articles 40 and 41 of the Labor Contract Law. If the labor contract expires at this time, the employee's labor contract period should be extended to the end of his isolation treatment, or the medical observation period expires, or the medical treatment period expires, or the measures due to emergency measures.
But there is a kind of situation here. You may need to pay attention to: If an employee resigns before the New Year, it may expire on February 1 or February 2. Normally, he will come back to go back on February 2 on February 2. However, due to the extension of the holiday, he cannot come back. At this time, because he resigns and his labor contract expires, the employee's labor relationship is still on February 1 and February 1. There is no law. The regulations say that the labor relationship is required to be extended, so the labor relationship is terminated as usual, but the issue of work handover needs to be flexibly handled. The two parties negotiate, for example, by mailing his belongings, or by other means. If there is no way to resolve it by mailing or other forms, it will be extended until he can come back to handle the handover after the epidemic is over. However, the labor relationship can be ended early, that is, it can be ended according to the original resignation period, without the need to extend until the expiration of the period mentioned above.
9 What should I do when I recruit employees? What are the specific operations methods for whether to come to work? I don't think the issue of
is not a legal issue. For recruitment situations, if a remote interview is passed, then if you want others to come to work, I think it can be handled flexibly in our offer, that is, your employment notice can flexibly handle this time, for example, if you are not sure to write it to a certain day, such as after the agreement is to end the quarantine measures or lift the corresponding control measures. As for the interview method, it is not a legal issue, and there is no way to give everyone more reference.
10 Before the 10th, there were workers on duty in the warehouse, or someone at the retail counter was considered to be resumption of work, do you need to register? I personally understand the issue of
. For enterprises, if individual workers are on duty, such as security guards, etc., which are not considered normal business and normal work, then it is still not considered to be a resumption of work. Then if people open to business or go to work in advance, they may need to apply for approval and application.
11 Is it considered an industrial injury if I get infected on the way back to Shanghai?
According to current regulations, only those infected with these new pneumonia viruses during work will cause work injuries, including medical staff, other epidemic prevention personnel, etc. Therefore, if an ordinary employee is infected with the virus, he will definitely not be treated as an employee injury.
Some places have individual regulations. For example, in Guangdong, the "Guangdong Provincial Work Injury Insurance Regulations" stipulate that "those infected with epidemic diseases are deemed to be industrial injuries by employers who are assigned to work in places declared as epidemic areas according to law." Then it depends on the specific regulations of each place. It is not necessarily possible to treat it as a work-related injury!
So if it is not on the job, it is just on the way back, it cannot be considered an industrial injury.
After resuming work, is it considered an injury to an employee during work and during get off work?
or some places are considered to be an industrial injury during work. So this is clearly stipulated in the "Guangdong Province Wages and Work Injury Insurance Regulations". For infectious diseases like SARS, they can be regarded as work-related injuries. As for whether other places can be counted, you can check whether the local work-related injury insurance regulations regard this infection as work-related injuries. If there is, it is OK, and if there is no, it may not work.
This time, after the new virus in Wuhan came out, it is hard to say whether it will be modified in various places. Is it possible to expand the scope of identification of work-related injuries? It is possible. But at present, not every place can do this.
However, infection during get off work is not counted, because there is only one situation during get off work, that is, traffic accidents that are not the main cause of me can be regarded as work-related injuries.
12 It was also approved before the Spring Festival. So the holiday started after the Spring Festival, but because the Spring Festival was postponed, what should I do?
I think this problem should be allowed to delay her maternity leave from a fair and reasonable perspective, because that holiday is applicable to all employees, and I think it is fairer.
13 HR buys masks for the company. If it is a fake, who will bear the money loss?
Personally, I understand that the company should bear it, because now everyone knows that masks are very difficult to buy, and there is indeed no way to do it in many cases. We may not have the professional knowledge to identify whether they are real masks or fake masks. I think HR is purchased on behalf of companies. If we fulfill our responsibilities and cannot identify the losses caused, the company should bear it.
14 Now, how do you decide on the arrangements after the rework after the holiday? Those who returned from Hubei were quarantined for 14 days first? How to operate if it is not from Hubei? I saw Harbin notified that I would be quarantined at home for 48 hours.
I suggest you take a look at the requirements issued by the local government in detail. Generally speaking, non-Hubei areas do not require quarantine for 14 days. As long as your body temperature is normal and there are no other symptoms, in this case, you will just go to work according to the local requirements for resuming work, and there is no quarantine required.
Of course, some units may require some isolation for caution, even if they do not come back from Hubei. So I think it is OK, but the premise is that under this isolation measure, the unit still needs to pay wages. That is to say, in this case, if you work from home, you also have to pay wages. This just means that it may not be overtime wages, because after all, it is not a holiday stipulated by the state and local governments, and it is determined by the enterprise itself.
15 It is risky for pregnant employees to consider going to work and have to propose a 4-month vacation. Should it be allowed? How to pay his salary?
First of all, I think there is special protection for pregnant employees in law, but this special protection is not unconditional protection. If she can work normally, she just doesn’t want to come to work and ask for a leave because she is worried about risks. In this case, you can negotiate with the unit to see what form it is, such as suspension of salary and staying at work, etc. But the unit has no obligation to say that because you are pregnant, I will give you a 4-month vacation to take longer than ordinary employees. This is legally unobligated, so how to pay the salary depends on the handling situation of the employees' own negotiations with the unit. You can negotiate and handle it reasonably.
But there may be issues regarding social security payment. I personally think that because of this situation, the company does not have to allow you to take vacations because of its employees, so this is a negotiation area. If after negotiation, for example, some employees voluntarily bear five insurances and one fund, then there is legal risk. Then I think the company may determine whether employees will complain or regret in the future.
16 is Guangdong Province requires enterprises not to resume work earlier than February 9, and enterprises do not require employees to use their annual leave to deduct from February 3 to 7.
If there was no previous postponement to resume work on February 9, of course it is OK, because the company has the right to arrange employees to take annual leave. However, on the 29th, Guangdong Province issued a regulation to extend the holiday period to February 9th. It is impossible to ask employees to use annual leave to deduct it, because there will be a problem, that is, other people who do not have annual leave can take paid leave, and those who have annual leave will deduct annual leave before taking it. This will definitely bring new unfairness, so employees cannot be asked to deduct annual leave.
17 We only go to work on February 10th. Normally, we pay our salary on the 5th. Can we extend it to the 10th? I think there is no problem with this problem, because it is a very special time and extraordinary measure now, so you only go to work on February 10th. If you go back on the 5th, it will also be a resumption of work, and it will increase a great risk of infection with the virus. It is unnecessary. I think in this case, no agency or individual will say that this practice of the unit will have problems or is illegal.
18 If an employee comes back from Hubei and isolates himself at home, can employees take annual leave during this period? How to pay wages?
If you continue to self-isolate after the holidays specified by various places, that is, after the period for resumption of work, there is no problem in arranging employees to take annual leave. I have repeatedly emphasized before that this unit has the right to arrange employees to take annual leave. So when you take annual leave, you know that wages are paid normally, which means that labor is provided and that the same wages as working are paid normally.
19 The wage components in the labor contract are basic wages and performance wages, but the amount of performance wages is not marked. So can only the basic wages be paid within a one-month period of work suspension?
This may not work, because the law stipulates that the normal salary for wages within one month obviously includes basic salary and performance salary. Then if this is allowed, it may be contrary to the original intention of legal legislation, so it should include basic salary and performance salary.
Finally, I would like to remind everyone that because it is an extraordinary measure in extraordinary times, many regulations are also being formulated in a intensive manner, including the regulations issued by Guangdong yesterday, but there is actually no explanation for how employees' overtime pay will be paid. There are no corresponding regulations in Chongqing, Zhejiang and other places. Therefore, while listening to our live broadcast, you may also pay close attention to some notices issued by the local government.
Of course, the practices in different places should actually be similar. Either adopt the practice of Shanghai and regard it as a rest day, or adopt the practice of Wuxi and Suzhou and regard it as a shutdown period. There are only two situations, and there should be no more choices. However, everyone still needs to make corresponding decisions based on some instructions from the local government. Before there is no new notice, we can only say that we will make corresponding treatments according to the existing notice. If there are new regulations that are issued and there is a big difference between the current practice, we can also consider doing some communication with you on our live broadcast platform.
