China

Authors: Carol Zhu and Yinbing Chen

On 1 August 2022, the Ministry of Human Resources and Social Security and the National Health Commission jointly issued the Urgent Circular of Cracking Down Job Discrimination Against Covid-recovered Patients (the “Circular”). According to the Circular, any organisation or individual shall not check others’ nucleic acid test results without permission, unless it is for the need of Covid prevention and control and the period to be checked for nucleic acid test results is set in a scientifical and reasonable manner. In addition, the Circular also stresses and prohibits employers from (i) releasing recruitment information that includes content about positive Covid test results in the history, (ii) refusing employment of candidates due to their Covid infection history, and (iii) applying any other job discrimination against Covid-recovered individuals during employment and recruitment process. In accordance with the Circular, employers’ violation of the foregoing rules may be subjected to public exposure or administrative penalty.

Key Action Points for Human Resources and In-house Counsel

Pursuant to PRC Employment Law, employees shall not be discriminated for their race, ethnicity, gender, or religious belief. This Circular expands the scope of job discrimination and prohibits Covid-based job discrimination. Employers in China shall be cautious and avoid Covid-based discrimination during the recruitment and employment processes.

Authors: Carol Zhu and Yinbing Chen

On 28 June 2022, the Comprehensive Group of the State Council Coping with Covid-19 Pandemic on Joint Prevention and Control Mechanism released the Plan for Prevention and Control of Covid-19 Pandemic (9th Edition) (the “Prevention and Control Plan”). According to the latest Prevention and Control Plan, the quarantine policy for inbound international travelers is changed from “fourteen [14] days of centralised quarantine plus seven [7] days of home-based health monitoring” to “seven [7] days of centralised quarantine plus three [3] days of home-based health monitoring”.  During the period of home-based health monitoring, the relevant individuals shall not go outside unless there is a special condition and it is necessary to go out (e.g., such as for medical attention). When going outside, such individuals shall properly adopt personal protective measures and try to avoid taking public transportation.

Key Action Points for Human Resources and In-house Counsel

During the Covid-19 pandemic period, multinational companies frequently inquire about China’s visa application policy and quarantine policy. The latest edition of the Prevention and Control Plan marks China’s first move in the last two years to ease the quarantine period for inbound travelers. It is advisable for multinational companies to pay close attention to China’s quarantine and visa policy and arrange for the international travel of expats accordingly.

Authors: Carol Zhu and Yinbing Chen

The Shanghai High People’s Court and the Shanghai Municipal Human Resources and Social Security Bureau jointly published the Replies to Several Questions on Dealing with Pandemic-related Employment Disputes (the “Replies”), which provides official guidance on employment management during a pandemic. The Replies have been prepared to answer 12 hypothetical questions that relate to employment management during the pandemic period.  Specifically, the Replies cover matters pertinent to: (i) the principles that shall be followed by all courts and human resources and social security departments in Shanghai when dealing with pandemic-related employment disputes; (ii) employers’ legal positions if they fail to promptly sign or renew written employment contracts with employees, due to influence of the pandemic or pandemic prevention and control measures; (iii) how employee sharing agreements shall be signed during the pandemic period; (iv) how employees shall be disciplined by employers for failing to comply with pandemic prevention and control measures; and (v) how employers should pay salary to employees who are confirmed COVID-19 patients or asymptomatic COVID-19 patients and their close contacts, during their isolation period for medical treatment or observation.

Key Action Points for Human Resources and In-house Counsel

The Official Guidance that was released is an important source of reference for employers, in that it will help them to better understand the application of law in various situations, in practice. During the pandemic period, it is much more likely that employment disputes will arise. As a result, it is thus essential for employers to utilise such official guidance in order to gain a comprehensive understanding of the current hot issues and avoid the potential legal risks associated with employment management.

The Beijing No. 1 Intermediate People’s Court held that the employee shall accept employer’s reasonable adjustment of management methods due to the COVID-19 pandemic and the employee’s delayed responses, without justification during work from home, amount to a legitimate cause for termination of employment.

Mr. Yang (“employee”) served as an algorithm engineer at a technology company (“employer”). Due to the pandemic, the employer had arranged for the employee to work from home since 2020 and required the employee to keep online during working hours and respond within half an hour. However, the employee responded to his supervisor hours later on multiple occasions or even did not respond within the same day, based on which the employer issued three warning letters to the employee and eventually terminated the employment. The employee argued that his delayed responses were due to being occupied by other work tasks, and then filed labour arbitration and started court proceedings with the claims to find the employer’s wrongful termination of employment and payment of indemnification.

The Beijing No. 1 Intermediate People’s Court heard the dispute and eventually ruled in favor of the employer based on: (1) it was unavoidable for employers to adjust management methods during the pandemic period and employees shall accept such reasonable adjustment; (2) the employee failed to provide reasonable explanations for delayed responses which had seriously violated the labour discipline; and (3) the employer’s termination of employment with the employee was legitimate.

Key Action Points for Human Resources and In-house Counsel 

It is noteworthy that the No. 1 Beijing Intermediate Court reasoned in its judgment, that employees shall accept the employer’s reasonable change of management method during the pandemic period, e.g. work from home through online office systems. This case provides a good reference for employers in China on how to exert effective staff management even during the pandemic period, when working from home is adopted.

Zhong Lun attorneys are available to assist you with these and other workplace issues. For more information, visit www.zhonglun.com.

For more information please contact Joseph Granato, Communications Manager at L&E Global at joseph.granato@leglobal.org.