1、 Q&A on wages of workers during the epidemic

Question 1: How to calculate the wages and benefits of workers during the period of legal isolation?

Answer: For patients with pneumonia infected by novel coronavirus, suspected patients and close contacts who cannot provide normal labor during their isolation treatment or medical observation period, as well as enterprise employees who cannot provide normal labor due to the implementation of isolation measures or other emergency measures by the government, the enterprise shall pay the employees for their work during this period, and shall not terminate the labor contract with employees according to Articles 40 and 41 of the Labor Contract Law. During this period, if the labor contract expires, it shall be postponed to the end of the employee's medical period, medical observation period, isolation period, or emergency measures taken by the government.

Reference basis: Article 1 of the Notice of the General Office of the Ministry of Human Resources and Social Security on Properly Handling Labor Relations Issues during the Prevention and Control of Pneumonia Infected with novel coronavirus

Question 2: After the end of the legal isolation period, the worker still needs to stop working for treatment. What is the salary treatment?

Answer: After the end of the isolation period, workers who still need to stop working for treatment can be paid their wages in accordance with the enterprise labor contract, collective agreement, or relevant regulations of the national medical period. The wages paid should not be lower than 80% of the local minimum wage standard.
Reference: Article 59 of the Opinions on Several Issues Concerning the Implementation of the Labor Law of the People's Republic of China

Question 3: If the government takes emergency measures according to law, resulting in workers being unable to work in the company, how should the wages of workers be calculated and paid?

Answer: It is necessary to distinguish between different situations and refer to question 1 for workers who are legally isolated.

1. If the company arranges non returning workers to provide labor through telephone, internet, etc., wages shall be paid according to normal labor or labor contract agreements.

"If the company arranges workers to take paid annual leave, self established welfare leave, and other types of leave during the period affected by the epidemic, wages shall be paid in accordance with relevant regulations.".

3. If the company has difficulties in production and operation due to the impact of the epidemic, it can stabilize its work position by negotiating with the workers to adjust salaries, rotate positions for rest, shorten working hours, and try not to lay off workers or reduce them as much as possible. Eligible companies can enjoy post stabilization subsidies according to regulations. If the company shuts down and stops production within a salary payment cycle, the company shall pay the workers' wages according to the standards specified in the labor contract. If the employee provides normal labor for more than one salary payment cycle, the salary paid by the company to the employee shall not be lower than the local minimum wage standard. "If a worker fails to provide normal labor, the company shall pay living expenses, which shall be subject to the regulations of each province, autonomous region, or municipality directly under the Central Government.".

Reference basis: Article 2 of the Notice of the General Office of the Ministry of Human Resources and Social Security on Properly Handling Labor Relations Issues during the Prevention and Control of Pneumonia Infected with novel coronavirus

Question 4: Due to the impact of the epidemic, the company is experiencing operational difficulties and serious cash flow shortages. Can I extend my salary?

Answer: The shutdown and production suspension caused by the epidemic is different from that caused by poor operation and management of the employer. It is not caused by the worker or the employer. The standard for payment of benefits during the period of shutdown can be determined through democratic negotiation between the employer and the workers' congress, labor union, or employee representatives; If no agreement can be reached, according to the Notice of the General Office of the Ministry of Human Resources and Social Security on Properly Handling Labor Relations during the Prevention and Control of Pneumonia Infected with novel coronavirus [RSTMD (2020) No. 5] and No. 8, if the employer stops production for more than one wage payment cycle, the employer shall negotiate with the worker to pay the corresponding living expenses. If a small number of workers provide normal labor during the period of shutdown, the employer shall pay wages not lower than the minimum wage standard of Shanghai according to regulations.

Reference: Article 4 of the Opinions of the Shanghai Higher People's Court and the Shanghai Municipal Human Resources and Social Security Bureau on the Guidance on the Handling of Labor Dispute Cases Affected by the Epidemic Situation

Question 5: Can the company deny transportation subsidies, catering subsidies, and performance bonuses to workers during their home office hours?

Answer: Transportation subsidies and catering subsidies need to be analyzed and judged in combination with the company's labor management system, employee manuals, labor contracts, and other relevant agreements. It is generally believed that the above subsidies are related to attendance or actual occurrence, and the company may not grant them. Performance bonus needs to be comprehensively judged based on the actual work performance of workers during the period of working from home and in combination with the company's performance evaluation. Companies should not unilaterally and directly withhold performance bonus payments.

2、 Q&A on labor and vacation during the epidemic

Question 1: Due to the COVID-19, employees are sealed and managed by "2+12" and "7+7". Can the enterprise arrange employees to work at home during the process of home isolation?

Answer: Home office mainly refers to the adjustment of the physical location of employees' office work. Under special circumstances of the epidemic, enterprises have the right to arrange for employees to work at home. According to the enterprise's arrangements, employees who provide normal labor through home office should be paid their wages normally. In addition, unless employees are under centralized isolation and observation due to the epidemic and have the conditions to work at home, the enterprise can arrange overtime or compensatory time off according to business needs during the closure period.

Reference basis: Opinions of the Ministry of Human Resources and Social Security, the All China Federation of Trade Unions, the China Enterprise Confederation/China Entrepreneur Association, and the All China Federation of Industry and Commerce on Stabilizing Labor Relations to Support Enterprises' Resumption of Work during the Prevention and Control of novel coronavirus Pneumonia Epidemic

Question 2: Can the enterprise give priority to arranging annual leave for employees who are quarantined at home due to the epidemic?

Answer: If employees are isolated at home due to the epidemic and do not have the conditions for remote work, enterprises can give priority to using paid annual leave through negotiation with employees. If an enterprise arranges for employees to take paid annual leave during the period of isolation at home, it shall pay corresponding wages and remuneration to the employees in accordance with the provisions on the payment of annual leave wages during this period.

Question 3: What arrangements should be made when the epidemic control period coincides with a rest day or legal holiday?

Answer: Unless employees work at home during the period of epidemic control, and the enterprise arranges employees to work overtime at home on rest days and legal holidays during the period of epidemic control, it is generally understood that employees do not provide normal labor during the period of epidemic control. Therefore, employees who claim additional compensatory leave or overtime pay from the enterprise solely based on the fact that the closure period coincides with a rest day or legal holiday are generally not supported.

Question 4: How are personal leave, sick leave, maternity leave, marriage and funeral leave generally arranged for employees during the period of epidemic control?
A: During the period of epidemic control, employees have the right to request personal leave, sick leave, maternity leave, or marriage and funeral leave from the enterprise, but it is up to the employees to voluntarily request such leave from the enterprise. Enterprises shall not force employees to take personal leave, sick leave, or other holidays to avoid paying wages or living expenses to such employees. More specifically, sick leave and maternity leave are intended to ensure the physical and mental health of employees and ensure their rapid recovery. In principle, such leave requests cannot be revoked or postponed due to the closure of the epidemic. If an employee applies for personal leave or marriage or funeral leave during the closure of the epidemic, but the original personal leave or marriage or funeral leave cannot be achieved due to the closure of the epidemic, the employee should promptly negotiate with the enterprise and apply for cancellation or extension of the original leave. The enterprise shall coordinate and adjust the reasons for the cancellation or extension of leave proposed by employees based on the above reasons on the basis of consensus.

3、 Q&A on work-related injuries among workers during the epidemic

Question 1: Can workers infected with COVID-19 on their way to and from work be identified as work-related injuries?

Answer: According to the "Regulations on Industrial Injury Insurance", "workers who are injured in traffic accidents that are not their main responsibility or in urban rail transit, passenger ferry, or train accidents while commuting should be recognized as industrial injuries.". Therefore, the worker who infects COVID-19 on the way to and from work cannot be identified as work-related injury.

Reference basis: Article 14 (6) of the Regulations on Industrial Injury Insurance

Question 2: Can workers infected with COVID-19 during working hours and in the workplace be identified as work-related injuries?

Answer: According to the "Regulations on Industrial Injury Insurance", during working hours and in the workplace, "workers who are injured by accidents due to work reasons" and "workers who are injured by accidents such as violence due to the performance of their work duties" should be recognized as industrial injuries. Therefore, for ordinary employees who are not medical staff, COVID-19 infection tends to be a disease rather than an accident injury or accidental injury, so it is difficult to be identified as an industrial injury.

Reference basis: Article 14 (1) and (3) of the Regulations on Industrial Injury Insurance

Question 3: Can workers infected with COVID-19 during home office work be identified as work-related injuries?

Answer: According to the "Regulations on Industrial Injury Insurance", during working hours and in the workplace, "workers who are injured by accidents due to work reasons" and "workers who are injured by accidents such as violence due to the performance of their work duties" should be recognized as industrial injuries. During the period when the employer arranges workers to work at home, if employees complete work tasks at home within the specified working hours, they can be regarded as completing work tasks at the workplace. However, whether workers infected with COVID-19 during this period can be identified as "injured by accidents due to work" requires workers to bear a higher burden of proof. Therefore, it is still uncertain and requires case analysis.

Reference basis: Article 14 (1) and (3) of the Regulations on Industrial Injury Insurance

Question 4: During the epidemic, can workers who are injured in voluntary activities of COVID-19 epidemic prevention be identified as work-related injuries?

Answer: According to the "Regulations on Industrial Injury Insurance", "those who are injured in activities such as emergency rescue and disaster relief to safeguard national and public interests" are considered as industrial injuries. If a volunteer is injured while engaging in COVID-19 epidemic prevention volunteer activities, and can be identified as "injured in national interest and public interest activities such as rescue and relief" by regulations and policies, there is a possibility of being identified as work-related injury.

Reference laws: Article 15 of the "Industrial Injury Insurance Regulations", Article 3 of the "Shanghai Volunteer Service Regulations"

4、 Q&A issues related to arbitration and litigation during the epidemic

Question 1: During the epidemic prevention and control period, can arbitration, limitation of action, time limit for adducing evidence, time limit for appealing, and time limit for applying for retrial be extended due to the impact of the epidemic? Is the relevant legal provisions on suspension of limitation of action or suspension of action applicable?

Answer: If the parties delay the time limit for arbitration and litigation due to the impact of the epidemic or the policy measures for epidemic prevention and control, they can apply to the people's court for an extension of the time limit, but they should provide evidence that the parties are definitely diagnosed with COVID-19, asymptomatic infection, and related informants or affected by the epidemic due to the measures for epidemic prevention and control. The people's court will consider whether to grant an extension of the time limit based on comprehensive factors such as the evidence affected by the epidemic and the current situation of the epidemic provided by the parties concerned.

"If a party is unable to exercise the right of claim or participate in relevant litigation activities due to force majeure or irresistible reasons such as the impact of the epidemic situation or epidemic prevention and control policies and measures, the people's court may apply the provisions on suspension of prescription and suspension of litigation, except as otherwise provided by law.".

Reference basis: Article 86, 194, 153 of the Civil Procedure Law of the People's Republic of China

Question 2: How to participate in court proceedings online, submit relevant litigation materials, contact judges, and electronically deliver litigation documents during epidemic prevention and control.

A: The case handling judge will inform the parties in advance of their right to choose an online trial. If the parties agree to the online trial, the case handling judge will inform them of the trial time, conference number, and the link and method to download the online trial video client by SMS. The parties can participate in the online trial through "WeChat Court".

The parties can also contact the case handling judge, file the case online, submit relevant litigation materials, and serve litigation documents electronically through such channels as "Shanghai Court Litigation Service Network 12368", "Shanghai Court 12368" WeChat official account, Shanghai Court 12368 hotline, "People's Court Online Service Shanghai" WeChat applet, "Litigation Service" of Shanghai Unicom Office, and "Litigation Service" of the application app. The parties only need to select the appropriate interface based on the guidance of voice, website, applet, and APP to follow up the case and submit materials "at home".

Reference basis: Article 90 of the Civil Procedure Law of the People's Republic of China, Online Litigation Rules of the People's Court, and Several Provisions of the Shanghai High Court on Further Promoting the Application of Electronic Delivery (Trial Implementation)

Question 3: During the epidemic prevention and control period, apart from submitting property preservation applications to the people's court by mail, how can the parties effectively and quickly complete property preservation and continue property preservation?

A: During the epidemic prevention and control period, the express delivery in some areas will be affected, and it is impossible to send the documents in time. To avoid the adverse impact of the delay in preservation, the parties can submit the application for property preservation or renewal of property preservation through the "litigation preservation" or "preservation center" interface in the "Shanghai Court Litigation Service Network 12368", "Shanghai Court 12368" WeChat official account, "People's Court Online Service Shanghai" WeChat applet. In case of special emergencies that cannot be submitted online, the party concerned can call the 12368 hotline of the Shanghai Court to contact the handling judge and explain the situation, so as to implement property preservation or renewal as soon as possible.

Question 4: During the epidemic prevention and control period, can the payment of litigation and arbitration fees be postponed or reduced?

A: If a party is affected by the epidemic and is indeed unable to pay legal fees due to economic difficulties, the party should provide the people's court with sufficient proof of their economic difficulties, and submit a written application for suspension or reduction of payment of legal fees for judicial assistance. However, the suspension or reduction of payment of litigation fees only applies to cases where the parties are natural persons.

For arbitration cases, if the parties submit an arbitration application through online means, the Shanghai Arbitration Commission will charge 90% of the acceptance fee and processing fee according to the applicable arbitration rules, and the portion of the dispute over the original or counterclaim in a single case that exceeds 3 billion yuan will not be charged; For cases where disputes are resolved through online hearings, the arbitration fee of 20% can be reduced on the original billing basis; The parties have reached a written settlement agreement, and if the arbitration tribunal agrees to issue a mediation letter/consensus award after hearing or mediation, the arbitration fee may be reduced by 50% on the original billing basis. However, if an arbitration case is settled through mediation, the arbitration fee may be reduced by an additional 25% on the basis of the 50% reduction in the original billing standard of the Association.

Reference basis: Special Measures of the Shanghai Arbitration Commission to Improve the Convenience of Arbitration to Help the Parties during the COVID-19 Epidemic