Q&A on dealing with hot labor disputes during lockdown

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

Q: What principles should be followed to resolve labor disputes related to the COVID-19 pandemic?

A: They must balance the needs of employees and employers and try to find a way to resolve issues amicably through negotiation.

Q: During the period of confinement, when an employer revises or applies rules and regulations for important matters that directly affect the vital interests of workers, how does the employer undertake democratic consultation and notification procedures?

A: Employers can seek the views of the union on significant changes that impact the vital interests of workers and how these affect relevant rules and regulations. These changes may include suspension of work and production, modification of labor compensation, adjustment of working methods and hours, job rotation and other relevant plans. This consultation can be done via emails, WeChat groups and Office Automation (OA).

Once the changes have been approved, they must inform the workers.

Q: Affected by the COVID-19 pandemic control and prevention measures, how do you determine the legal consequences of an employer’s failure to enter into or renew a written employment contract with an employee in a timely manner?

A: A digital version of a contract has the same legal effect as a printed paper version. In addition, both parties can postpone the finalization of the contract to an appropriate time through negotiation.

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

A: If the employee is infected or is identified as a close contact for reasons that cannot be attributed to them, the employer must pay their wages as usual.

Q: If a worker is unable to work normally due to the pandemic or 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 from home, he must be paid normally.

Second, if the employee cannot work from home, they can first use their annual vacation or welfare vacation.

Third, apart from these two situations, the employee must be remunerated in accordance with the laws and the terms of his employment contract.

Q: If the employer is having difficulty maintaining production and operations due to the pandemic, can the employee’s salary be delayed?

A: Yes, but no later than a month.

Q: How should the issue be resolved if the employer has difficulty paying the workers due to the pandemic and the workers have asked the employer to terminate the employment contract and pay compensation?

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

Q: If an employee refuses to work from home and asks the employer to terminate the employment contract and pay compensation, what is the solution?

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

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

A: No.

Q: During the pandemic prevention and control period, if an employee is investigated for suspected criminal acts or receives administrative sanctions, such as public security detention for not following the prevention and control of the epidemic, can the employer terminate the employment contract?

A: Yes.

Q: How can the protection of the legal rights and interests of transferred workers under the “job-sharing” model be strengthened during the pandemic?

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

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

A: Arbitration or litigation may be postponed or suspended in accordance with applicable rules and laws.

Jessica C. Bell