As the new coronavirus epidemic becomes more and more serious, in order to improve epidemic prevention measures and avoid crowd gathering, the central government and local governments have successively announced notices to extend the Spring Festival holiday or postpone the resumption of work; Although the above notice has become an effective means to interrupt the spread of the disease, whether it is the business activities of enterprises or the rights and interests of workers, it is inevitable that they will be greatly affected, and many legal problems will arise, so this article mainly analyzes the legal issues of labor employment in relevant enterprises based on the policies issued at this stage.

1. The legal nature of extending the Spring Festival holiday and delaying the resumption of work

The legal nature of extending the Spring Festival holiday and delaying the resumption of work will have a multifaceted impact on enterprises and workers, such as the calculation of wages, the arrangement of annual leave, etc., so before further clarifying the legal issues of labor employment in enterprises, the legal nature of extending the Spring Festival holiday and delaying the resumption of work will be analyzed.

(1) Extend the Spring Festival holiday

On January 26, 2020, the General Office of the State Council issued the Notice on Extending the 2020 Spring Festival Holiday, extending the 2020 Spring Festival holiday to February 2, and going to work normally from February 3. According to the Measures for the Holiday of National New Year's Festivals and Anniversaries and the Regulations of the State Council on Working Hours of Employees, extended holidays are not statutory holidays; According to the above-mentioned notice of the State Council, the extension of the Spring Festival holiday is aimed at strengthening the prevention and control of the new coronavirus, so this article considers this holiday to be a special measure adopted by the state to respond to the epidemic, and is a special holiday rather than a statutory holiday.

(2) Delay in resuming work

After the central government issued a notice extending the Spring Festival holiday, the provinces also issued notices on delaying the resumption of work in accordance with local conditions, that is, unless otherwise specified, requiring all types of enterprises within their jurisdictions to suspend work until a specified date. Taking Shanghai as an example, the Notice of the Shanghai Municipal People's Government on Deferring the Resumption of Work and School Opening of Enterprises in Shanghai stipulates that except for special enterprises, all types of enterprises should resume work no earlier than 24:00 on February 9; Regarding the nature of the delayed resumption of work, the Shanghai Municipal Bureau of Human Resources and Social Security will clearly define the delayed resumption period as a rest day.

This article believes that the Shanghai Municipal Bureau of Human Resources and Social Security interprets the delayed resumption of work period as a rest day as an epidemic prevention measure in an extraordinary period, which is profound. However, from the perspective of laws and regulations such as the Constitution, the Legislation Law, and the Provisions of the State Council on Working Hours of Employees, the leave system for employees should be specified by laws or administrative regulations. In addition, according to the Emergency Law and the Law on the Prevention and Control of Infectious Diseases, the emergency measures authorized by law to be implemented by local governments include suspension of work, business and school when necessary, so the delay in resuming work in various provinces and cities should be an emergency measure to "stop work" in response to special circumstances. In summary, when other provinces and cities have not issued relevant documents or made a clear response to the "delayed resumption of work", this article believes that the nature of the delayed resumption of work should still be determined in accordance with the provisions of laws and regulations.

2. Calculation of wages during the period of extended Spring Festival holiday and delayed resumption of work

Regarding the issue of wages and benefits during the extension of the Spring Festival holiday and the postponement of resumption of work, the "Opinions on Stabilizing Labor Relations during the Prevention and Control of the Novel Coronavirus Pneumonia Epidemic and Supporting Enterprises to Resume Work and Production during the Prevention and Control of the Novel Coronavirus Pneumonia Epidemic" (hereinafter referred to as the "Opinions") issued by the Ministry of Human Resources and Social Security stipulates as follows: "During the period of delayed resumption of work or the period of failure to return to work affected by the epidemic, for employees who cannot provide normal labor after using all kinds of leave, guide enterprises to refer to the national regulations on work stoppage, During the suspension of production, the relevant regulations on wage payment shall be negotiated with the employees, and the wages shall be paid in accordance with the standards stipulated in the labor contract within one wage payment cycle; For more than one salary payment cycle, living expenses shall be paid in accordance with relevant regulations. "That is, employees who do not provide labor for the extension of the Spring Festival holiday should still pay wages in accordance with the provisions of the labor contract, and for employees who cannot take leave due to epidemic prevention and control work during the extended Spring Festival holiday, they should be given compensatory leave, and if they cannot arrange compensatory leave, overtime wages should be paid according to law."

In Shanghai, for example, since the delayed resumption of work period is a rest day, the enterprise should pay wages to employees who take a break in accordance with the standard agreed in the labor contract; Employees who provide work for special tasks shall be given compensatory repairs as rest days or paid overtime wages in accordance with the law. Based on the current policy and academic and practical insights, this paper argues that the salary payment standards appropriately reflect the nature of the extended Spring Festival holiday and the delayed resumption of work.

3. Whether employees can be arranged to compensate for annual leave during the extension of the Spring Festival holiday and the postponement of resumption of work

Based on the above analysis of the nature of extending the Spring Festival holiday, this paper argues that the extension of the Spring Festival holiday is a special holiday added by the state due to epidemic prevention needs, not a continuation of the statutory Spring Festival holiday itself, and the nature is more similar to a special rest day, so it should not be credited to the annual leave.

As for whether the employee's annual leave can be deducted during the period of delayed resumption of work, the nature of the period of delayed resumption of work is determined. Taking Shanghai as an example, since Shanghai has designated the delayed resumption of work period as a rest day, if employees are arranged to take statutory annual leave during this period, there is a suspicion of depriving employees of normal leave, so annual leave arrangements should not be made in Shanghai during the delayed resumption of work.

For provinces and cities that have not further clarified the nature of the delayed resumption of work, referring to the "Opinions" of the Ministry of Human Resources and Social Security, that is, "for enterprises that cannot arrive at work on time or enterprises cannot start production and do not have remote office conditions, negotiate with employees to give priority to the use of paid annual leave, enterprise-provided welfare leave and other types of leave", this paper argues that in extraordinary times, it is necessary to properly weigh the needs of enterprise employment and the protection of workers' rights and interests, and in provinces where the nature of the delayed resumption of work period is not clearly defined, enterprises may arrange employees to take statutory annual leave after reaching a consensus with employees.

4. Response measures and suggestions after resumption of work

Considering the complexity, severity and long-term nature of the epidemic, after the formal resumption of work, in addition to cooperating with national policies and relevant provisions of laws and regulations, enterprises must also improve epidemic prevention measures for themselves and employees, and properly manage their own health. Whether it is the extension of the Spring Festival holiday or the postponement of the resumption of work, it is an emergency measure taken by enterprises to cooperate with the state to control the epidemic, but it is undeniable that the impact on enterprises during the epidemic period is very severe, and enterprises can reduce their costs and losses by making proper use of central and local policy measures during this period. In the long run, after the epidemic subsides, the market and socio-economic structure will change to a considerable extent, and the sacrifices made by enterprises at this stage to promote the overall interests should be compensated through a legal and systematic social compensation system, and continuous support and guidance for enterprises affected by the epidemic should be the best way to cure the root cause.

(This article is translated by software translator for reference only.)