China - Frontline - COVID-19 Update.
Legal News & Analysis - Asia Pacific - China - Labour & Employment
19 May 2020
State Council Issued Guideline to Ensure Employment in light of COVID-19 Impact and Deputy Minister Urges to Stop Discrimination against Hubei Labourers
On 18 March 2020, the State Council has released a guideline to support and further the recovery of employment in light of the impact of the COVID-19 outbreak（the “Guideline”）.
The five core measures introduced by the Guideline include prioritising employment, assisting migrant workers in returning to work, expanding job duties for college graduates, ensuring social security to those in need, and improving professional training and employment services.
Following the issuance of the Guideline, the Deputy Minister of Ministry of Human Resource and Social Security emphasised in a press conference that workplace discrimination against people from Hubei or other areas hardest hit by COVID-19 must be prohibited. Employers who arbitrarily reject applicants from Hubei or dismiss employees from the province must be "resolutely corrected in accordance with the law".
PRC labour laws prohibit workplace discrimination based on ethnicity, sex, religion, disability, social background and health. Regional discrimination, although not explicitly prohibited in written laws, has been prohibited resolutely in judicial practices. Termination made on the ground of regional discrimination will be deemed illegal and the employer will have to reinstate the employee and make backpay, or to pay double-severance if the employee rejects the reinstatement. If regional discrimination occurs during the hiring stage, the party who perpetrates the discrimination will have to make a public apology and/or compensate the applicant for the losses suffered (including mental loss fees).
Local Governments Encouraging the Implementation of a 2.5 day Weekend.
To stimulate tourism and consumption, some provinces (e.g. Anhui, Zhejiang, Hebei, Jiangxi) and cities (e.g. Nanjing, Longnan, Lichun) are encouraging enterprises to implement a 2.5 day weekend. The new measures are voluntary and companies have the right to decide how to implement them according to local rules and actual circumstances.
PRC labour laws require employees to work 40 hours per week. The employees who get a 2.5 day weekend may be asked to make up for the hours during other times of the week and the additional hours performed during the weekdays will not be deemed as overtime.
Shanghai Issued Judicial Explanations to Guide Hearings of Labour Disputes Related to the COVID-19 Outbreak
Recently, the Shanghai High People's Court and Shanghai Human Resource and Social Security Bureau jointly issued an explanation rule on handling labour disputes related to the COVID-19 outbreak (the "Shanghai Rule").
Under this Shanghai Rule, an employer may adjust the position and salary of the employees, delay the payment of salary, impose furlough, rotation, or shift arrangement, and suspend operation, if (i) the employer has gone through the statutory democratic process and consulted with the employee representative congress, trade union, or employee representatives regarding such arrangements and (ii) the arrangements are reasonable and fair, and are only applicable during the COVID-19 outbreak period.
Ying Wang, Partner, Bird & Bird