Li Gan, a researcher at the Digital Rule of Law Center of the School of Law of Shanghai University of International Business and Economics, told CBN that at present, the epidemic prevention policy has undergone great changes, but the epidemic isolation treatment policy has not been adjusted accordingly, and the current treatment policy may be out of touch with the actual situation of enterprises.
"From the perspective of strict compliance, enterprises should still implement the current isolation treatment regulations, that is, employees are isolated at home, especially if they still complete their work normally or partially during the isolation period at home, and enterprises should still pay wages normally." Li Gan said, "However, considering the actual difficulties of enterprises, it is suggested that enterprises give priority to properly adjusting the rights and obligations of both parties through consultation with employees, such as negotiating a salary standard that only applies during the isolation period, or using legal or welfare paid annual leave during the isolation period."
Experts pointed out that before the introduction of the new policy, adjustments similar to the above have been made to encourage employers and employees to reach a sustainable solution that balances the interests of both parties as much as possible through reasonable processes recognized by both parties.
The epidemic isolation treatment policy has not been adjusted.
CBN has learned from employees of many employers that the common wage payment policy for positive infected persons or close contacts is that during the period of home isolation, if employees can provide normal labor, they will pay normal wages according to home office; If not, paid annual leave is preferred. Those who have no annual leave can apply for sick leave.
There are also some employers who directly discounted their wages and left them at home. Some institutions clearly stipulate that they can't be on duty because of the epidemic, and their wages are paid at a 50% discount. There are also some small enterprises whose production and operation have been greatly affected, and the salary discount for working at home has been increasing. The salary of some home offices has dropped from 30% at the beginning of this year to 30%.
Previously, some workers consulted the human society department about the problem of wage discount for positive infected people. The local reply is that at present, according to the relevant policies and regulations during the epidemic period, the unit should pay the normal attendance salary of employees during the period of home isolation, and it is not allowed to discount it by itself.
The First Financial Reporter also consulted the 12333 labor security hotlines in Beijing, Shenzhen, Shijiazhuang and other cities. The staff all said that the home isolation of positive patients also belongs to the isolation scope required by the government. According to the relevant regulations on wage payment in China, if the unit stops work or production due to reasons other than the employee, the employer shall pay the employee wages according to the standards agreed in the labor contract. The policy of epidemic isolation treatment is implemented in the Notice of the General Office of Ministry of Human Resources and Social Security on Doing a Good Job in Labor Relations during the Prevention and Control of Pneumonia Infection in novel coronavirus (No.5 [2020] of the Department of Human Resources and Social Security). At present, there are no new regulations, and enterprises will implement them according to the existing regulations.
The current policy of wage payment during the isolation period was formulated at the beginning of the epidemic in 2020. Article 1 of the above-mentioned notice of Ministry of Human Resources and Social Security stipulates that "the enterprise shall pay remuneration to the employees who are unable to provide normal labor due to the isolation treatment or medical observation of pneumonia patients, suspected patients and close contacts infected with novel coronavirus".
The staff of Shenzhen 12345 said that the current home isolation of positive infected people also belongs to the isolation required by the government. During the period of home isolation, if patients can provide jobs, employers will benefit, which is the best choice. However, positive patients need treatment and rest, and cannot provide normal jobs, and employers also need to pay wages normally.
The staff of Beijing 12333 said that this new situation has been noticed and no new documents have been issued yet. In the case that the treatment policy has not been adjusted, if the enterprise changes the isolation treatment policy on its own, it may lead to labor disputes.
Li Gan said that although the epidemic prevention policy has changed, the regulations of Ministry of Human Resources and Social Security and local governments on the treatment of employees during the quarantine period have not been adjusted accordingly. Therefore, before the quarantine treatment policy is clearly adjusted, enterprises should still implement the existing quarantine treatment regulations from the perspective of strict compliance.
Li Gan believes that the latest epidemic prevention policy ("Article 10 of the New China") stipulates that asymptomatic infected people, mild patients and close contacts with conditions can choose home isolation or centralized isolation independently, but the epidemic prevention policy essentially requires that positive or potential positive people need isolation, which is also in line with the premise of Ministry of Human Resources and Social Security and local policies on normal wage payment, namely isolation. Therefore, at present, enterprises should still pay wages to employees who are isolated at home, especially those who still complete their work normally or partially during the period of isolation at home.
Chen Hongde, deputy director of Haida Zheng Ping Law Firm, told the First Financial Reporter that Ministry of Human Resources and Social Security's stipulation that "enterprises should pay employees' labor remuneration during this period" is relatively general, because wages are mainly composed of basic wages and performance wages, and "paying labor remuneration" and "paying normal wages" are two different things. What is "remuneration for work"? It will be more valuable to refer to the specific local regulations and the court's judgment on the epidemic.
The salary standard of the isolated personnel in COVID-19, Beijing is based on the Answer on Applicable Legal Issues in the Trial of Labor Dispute Cases in novel coronavirus's Prevention and Control Work by Beijing Higher People's Court and Beijing Labor and Personnel Dispute Arbitration Committee.
Article 10 of this document stipulates that during the period of isolation treatment or medical observation, pneumonia patients, pathogen carriers (asymptomatic infection), suspected patients and close contacts infected in novel coronavirus shall be paid by the employing unit according to the fixed components such as basic salary and post salary during the normal working period of the workers, while the non-fixed components such as performance, bonus, commission and other labor remuneration, as well as car and meal supplements related to actual attendance, may not be paid, but shall not be lower than the minimum wage standard of this city. During the above-mentioned period, if the employing unit arranges the above-mentioned personnel to work flexibly, it shall pay the labor remuneration according to the normal attendance of the workers.
How can enterprises pass the "epidemic transition period" in compliance?
The staff of Yidi 12333 said that the optimization and adjustment of epidemic prevention and control policies has just begun, and the human and social departments have not yet formulated new policies. The general trend is to change according to the direction of prevention and control policies. If COVID-19 is reduced to a common infectious disease, such as influenza, then the problem of isolation treatment does not need special provisions, and can be implemented in accordance with the existing infectious diseases regulations.
Li Gan said that before the policy of isolation treatment is adjusted, it is suggested that enterprises give priority to properly adjust the rights and obligations of both parties through consultation with employees, such as negotiating with employees to use legal or welfare paid annual leave during their home isolation, or negotiating a lower salary standard that is only applicable during the home isolation period (such as according to the sick pay standard).
Accordingly, if the enterprise negotiates with employees to use annual leave or only pays a small amount of remuneration, it is not appropriate for the enterprise to arrange employees to work normally during the period of employee home isolation, otherwise it may be considered that the enterprise has broken through the negotiation content with actual performance.
Li Gan believes that in the long run, the epidemic may not be completely over in the short term, and enterprises should consciously and timely formulate and adjust policies to adapt to the new employment situation that may arise under the epidemic.
A labor law researcher told CBN that one of the characteristics of China's labor legal system is that enterprises undertake some peripheral governance functions, but also bear certain costs that should be borne by the government. In this case, for the needs of "protecting employment" and "protecting market players", enterprises can formulate or modify the enterprise employment management system through democratic procedures. For example, split the salary structure, reduce the basic salary, and increase the labor remuneration related to attendance and performance, such as transportation subsidies. , and clearly stipulates that such subsidies and flexible salaries are generated by employees' commuting, attendance, attendance and excellent work performance. Therefore, if employees are isolated at home and cannot attend and work normally, the enterprise may not pay or pay less relevant remuneration as appropriate. However, the formulation and modification of similar systems must be within the scope permitted by laws and regulations and in line with the internal articles of association of the enterprise.
Yao Kai, director of the Global Research Center for the Development of Scientific and Technological Talents of Fudan University, told CBN that when large-scale infection exceeds the capacity of enterprises, the government should also consider introducing corresponding subsidies or other support policies.