Managing HR Through COVID-19
A Practical Guide For Multinational Employers
Prepared by Jingtian & Gongcheng
As as April 10, 2020
This guide will help employers manage HR legal and practical issues arising from COVID-19.
- Good Practice Guidance – giving high-level consideration;
- An Action Point Checklist – to drill down into the detail; and
- Answers to Key Questions facing employers in the People’s Republic of China.
This publication has been coordinated by Mayer Brown and forms part of a wider Mayer Brown Guide for Multinational Employers, which is available here.
It has been jointly prepared by Mayer Brown and Jingtian & Gongcheng and is published with Jingtian & Gongcheng’s kind permission. With special thanks to:
Jingtian & Gongcheng | Deng Youping | firstname.lastname@example.org | www.jingtian.com/en
There are a number of key good practice points that employers across all jurisdictions will want to consider in connection with COVID-19:
1. Keep up-to-date with accurate information
It is difficult for an employer to make proper decisions based on rumors, assumptions and “fake news”. Therefore, it is important for an employer to stay up-to-date with accurate information and make decisions based on facts. Employers should monitor official sources, including government advisories and the World Health Organization (“WHO“) website, and check that the information they receive is factually correct.
2. Know where your employees are and where they have been
An employer cannot keep its employees out of harm’s way if it does not know where they are and where they have been. As outbreaks of COVID-19 occur in various parts of the world, keep track of which of your employees could be at risk.
3. Communicate with your employees
Employers should communicate openly and often with their employees so that they have the information they need to help keep themselves educated and updated about the coronavirus. It should not assume that all employees will educate themselves or have access to the same sources of reliable information. Putting everyone on the same page will help the employer and its employees move together in a timely manner as a business. Open and timely communication will help build trust and reduce the spread of rumors that may cause anxiety in the workplace.
4. Provide a safe platform for employees to raise concerns
Employers should give employees a safe platform where they can raise concerns on all aspects related to work, from mental health to the risk of having contracted COVID-19. This is not just good employee relations, but early detection and doing something about it can help to reduce the spread of the virus. It is one thing to have an employee assistance plan and ask employees to report issues, but if those who report are stigmatized or treated with contempt, employees may be deterred from reporting.
There may be nervousness and anxiety in the workplace, and possibly even conflicts, given concerns about the virus. Employees should be given avenues to communicate such anxiety to their employer, so that concerns are addressed earlier and do not balloon into bigger issues.
5. If you can be flexible, then be flexible
Employers should understand that this is a time of stress for all parties, including employees. Recognize that employees will have different needs depending on their circumstances (e.g., those with school-age children may need more time off as school classes are suspended).
This time of uncertainty will pass but employees will remember how their employer treated them long after the threat of the virus has disappeared. A disgruntled employee may try to make it known to the world how badly their employer treated them. This may affect the employer’s brand and ability to attract and retain talent. The employer may then have to wait for another crisis or challenging time to get the opportunity to prove itself as a good employer.
6. One size may not fit all
While consistency in treatment is generally to be favored, be conscious that one size may not fit all. For example, “work from home” or remote working may not work for everyone. The implementation of general directives should be checked against legal obligations under the contract of employment and local law.
Action Point Checklist
In general terms, the steps an employer needs to be taking now relate to four categories: Review, Communicate, Update and Travel. No list of action points will be comprehensive for all employers, but the following will form a good starting point.
- Review business continuity plans and how these would be maintained if employees are suffering from coronavirus absences.
- Review existing sickness policies and procedures. Are they adequately disseminated to staff? Do they need amending?
- Review contracts of employment. It may be relevant to establish whether or not individuals can be asked to undertake different work or at different locations or at different times from the norm.
- Review the employer’s emergency procedures, e.g., if there is an infection and the workplace is closed on a temporary basis. If appropriate, carry out a test run of an emergency communication to see how robust the process is.
- Ensure contact details for all staff are up-to-date.
- Undertake a risk analysis of high-risk groups of employees, and what steps can be taken to try and reduce risks for those groups. These groups may include:
- those who travel frequently to countries where there is currently or may well in future be a risk of infection.
- those with health issues, such as asthma, diabetes, cancer, or those who are pregnant, who are more likely to suffer adversely if they become infected with the virus.
- Review procedures in the office for preventing the spread of the virus, e.g., increased cleaning, availability of hand sanitizers and tissues etc.
- Review planning for the possibility of large scale absenteeism. For example:
- Identifying the essential positions within the business, what needs to carry on during an emergency, and what is the minimum number of employees required?
- Identifying employees with transferable skills so that these essential positions can always be temporarily filled.
- Considering flexible work patterns, such as employees working from home.
- Identifying those employees who have the necessary IT infrastructure to work from home (e.g., remote access to the office computer systems).
- Identify an appropriate person as spokesperson/communicator of updates on policies etc., with appropriate credibility.
- What, if anything, is said about absence from work for reasons other than ill-health, e.g., where an office is closed?
- Assuming the employer has a health and safety committee, have there been any discussions with that committee about COVID-19 and its potential impact? If there is no such committee, the employer may want to consider setting one up.
- Communicate as a matter of urgency with the high-risk groups identified in any risk review to ensure they are aware of their high-risk status and the measures that are being taken to assist.
- Ensure managers are aware of the relevant workplace policies.
- Consider issuing guidance to employees on how to recognize when a person is infected with the coronavirus. What are the symptoms, and what should one do if one is taken ill at home or at work? It is also important to emphasize that individuals may not recognize that they have the virus and so may not be exhibiting symptoms. Employees should be informed of the reporting procedure within their employer if they have a potential infection as well as any official reporting process.
- Provide advice to encourage individuals to take a degree of responsibility for their own health and safety and to slow the spread of the virus. For example, advice on handwashing and use of sanitizer gels, coupled with a willingness to self-identify where it is possible that individuals have come into contact with individuals with the virus, have become infected themselves or have returned from private travel abroad to an area which turns out to be affected by the virus.
- Make clear that where staff are ill, they must not come to work regardless, i.e., “struggle through”.
- Initiate a system to keep up-to-date, especially given the speed at which infection is spreading.
- Consider establishing a committee on the employer’s side to coordinate responses and engage with any staff consultative forum, and with particular responsibility for staying up-to-date with public health updates.
- How will employers communicate to employees regular updates on the coronavirus and its spread? As news develops, it is extremely important for an employer to be issuing fact-based updates, to avoid the possibility of fear being used by worried employees to make decisions about whether or not to come to work, whether to travel abroad, etc.
- Who will have the authority to determine changes to policy and issue any new communications to staff?
- Log employee travel before it is booked and check against the latest travel protocols.
- Ensure staff know that this applies to personal travel as well as business travel.
- Encourage staff to tell you if close family members with whom they share a house are travelling to infected areas.
- Replace face-to-face meetings (especially those involving travel) with video conferences, telephone conferences, etc.
- Consult/communicate about whether to encourage varied work patterns to avoid travelling on public transport at rush hour.
As at April 10, 2020
1. What are an employer’s main legal obligations?
- Ensuring so far as reasonably practicable the workplace health and safety of employees (i.e., requirements under the Circular of Guide on Prevention and Control of COVID-19 Measures in Business Recovery of Enterprises and Public Institutions issued by the State Council (“Circular“));
- Ensuring virus prevention and control measures are properly carried out at the workplace, such as entry-exit registration and administration (i.e., requirements under the Circular);
- Complying with obligations under the contract of employment, the PRC Labor Contract Law (“LCL“) and the PRC Social Insurance Law (“SIL“) (e.g., continuing to pay wages and the social insurance premium, ensuring the employee works within the terms of the contract of employment); and
- Complying with the PRC Law on Prevention and Treatment of Infectious Diseases (“LRTID“) (e.g., timely reporting of COVID-19 patients, suspected COVID-19 patients and those with suspicious symptoms).
2. Do I need to prepare for and have in place a workplace plan to deal with COVID-19?
There is no legal obligation in the PRC on an employer to specifically have a workplace COVID-19 response plan. However, it is required in the Circular that abnormal situations, if any, should be managed by employers, in a proper and timely manner, so as to ensure the safety of their employees and workplaces. One reasonably practicable step an employer could take is to develop a plan dealing with workplace health and safety issues associated with COVID-19.
We would suggest that employers prepare a detailed plan (if one is not already in place) and implement it. For this purpose, the Circular also provides a number of guides which may be referred to by employers when developing their own plans. In addition to issues on prevention and control of COVID-19, business continuity should also be considered and addressed in such plan. The plan may constitute part of the employers’ bylaws.
3. What should a workplace COVID-19 response plan cover?
The Circular sets out the guidelines on preventive measures that could be adopted.
4. Can I direct my employees to go home or stay at home if there is an outbreak?
Yes. If the employee is infected, or suspected of being infected, with COVID-19, keeping the employee away from the workplace is not only reasonable, but also required by the Circular, for public health protection. So, in this situation, the employer may direct the employee not to attend the workplace and ask the employee to go to hospital or to remain under isolated observation for 14 days. The employer should continue to comply with its obligations under the labor contract (e.g., to pay wages). For employees who are not infected or suspected of being infected with COVID-19, the employer is also allowed (even encouraged in some places) to arrange for them to work from home.
5. Can I direct an employee to see a doctor?
Yes. Due to the outbreak of COVID-19 in the PRC, if an employee is found to be a COVID-19 patient or a suspected COVID-19 patient, or has any suspicious symptom, such as fever or coughing, the employer should, as per the Circular, request that the employee see a doctor. Apart from that, the employer should also report to the local disease prevention and control authority in a timely manner, which will follow up to make sure the employee receives medical treatment at hospital or remains under isolated observation for 14 days. Depending upon the circumstances, an employer may require an employee to obtain a certificate from the medical institution or the disease prevention and control authority showing that the employee has been cured or released from isolation, before being allowed to return to the workplace.
6. Do I have to continue to pay wages and provide other employment-related entitlements during a COVID-19 outbreak?
Yes. The labor contract continues during a COVID-19 outbreak unless the employment has ceased. An employer cannot refuse to pay wages simply because the employee is unable to attend the workplace or perform any work during the period of isolated observation. However, according to the Opinions on Stabilization of Employment Relationship and Support to Business Recovery During COVID-19 Prevention and Control Period, recently issued by the Ministry of Human Resources and Social Security jointly with other organizations, such as the All-China Federation of Trade Union, if an employee is still not able to perform any work after the period of isolated observation and needs to receive further medical treatment, rules on the medical treatment period apply to the wage payment, which means that the employee’s wage could be lawfully reduced, but no lower than 80% of the local minimum wage standard.
7. Can I quarantine certain staff to certain parts of an office or send them to a different office?
It is possible. According to the Circular, an employer may set up a quarantine area at the workplace and, if an employee shows any suspicious symptoms, they should be moved to such a quarantine area. This, however, is just for temporary quarantine. The employer should then report to the local disease prevention and control authority, and ask the employee to go to a nearby hospital for examination or medical treatment. In this situation, the employer should not permit the employee to continue working at the workplace as they might infect other employees or visitors to the office or any different office. If the employee has no suspicious symptoms, it might be problematic if the employer sends such staff to a different office, especially an office in a different city or country, as the labor contract normally provides that the employee is entitled to work at a particular location. It may therefore be held to be a breach of the labor contract if an employer changes the work location without the consent of the employee.
8. Can I direct my employees to report suspected cases of COVID-19?
Yes, given the background of the serious COVID-19 outbreak in the PRC, an employer is allowed, according to the Circular, to monitor the health condition of its employees. In our opinion, this should understandably include asking an employee to report if they suspect that they have been infected with COVID-19.
9. Can an employee lawfully refuse to attend work if there is a COVID-19 outbreak?
It depends but it is possible. Under the LCL, if an employee refuses to perform the dangerous activities that are required by the employer, in violation of relevant rules or peremptorily ordered by the management of the employer, the employee will not be held to be in breach of the labor contract. For example, if an employer requires an employee to attend work at a workplace where there is already a COVID-19 outbreak, such instruction may be deemed not only highly dangerous for the employee but also in violation of rules on prevention and control of the virus, and thus the employee may lawfully refuse to attend work without being held in breach of the labor contract.
10. Can I screen employees and customers before allowing them to enter the workplace?
This is not very clear under the PRC law. Generally, as per the LRTID, entities authorized by law, such as disease prevention and control institutions and medical institutions, may legally collect personal information related to the epidemic and, when required by such entities, other entities (such as employers) may also collect such personal information. According to the Circular, enterprises are expected to appoint specific persons to carry out the registration and management of persons entering and exiting the workplace. If anyone intends to enter the workplace, either employee or non-employee, they should agree to a body temperature measurement, and provide certain information, such as where they come from, which companies they work for, and whether they have had any contact with people from places where there are outbreaks of COVID-19. It is not mentioned whether screening belongs to part of such registration and management. In view of the serious outbreak of the virus in the PRC, we are of the opinion that employers could screen their employees and customers, as a part of the entry-exit registration and management works during the COVID-19 epidemic period. However, attention should also be paid to the proper use thereof, as personal information concerns privacy issues and, in principle, should be well protected and used for virus prevention and control purposes only. Without the consent of the people whose information is being collected, the employer should not publish such personal information, and should take strict management and technical measures to prevent theft or leakage of such information.
CONTACT: Jingtian & Gongcheng | Deng Youping | email@example.com | www.jingtian.com/en
Appendix: Workplace COVID-19 Response Plan
A plan should deal with the following:
BEFORE AN OUTBREAK
- Preventive measures.
- Disinfecting the workplace regularly.
- Maintaining good indoor ventilation.
- Making sure that employees, suppliers and customers are aware of the employer’s plans in the event of an outbreak.
- Ensuring sufficient supplies of appropriate masks, alcohol wipes, gloves, paper towels, thermometers, disinfectants, etc.
- If employees are required to travel to areas known to have the virus, whether such travel is necessary.
DURING AN OUTBREAK
- The steps the employer will take to ensure the safety of employees while at work during a COVID-19 outbreak include how an employer will identify risks of employees becoming infected and how to minimize such risks. The employer may also wish to seek advice from government/official sources as to what steps need to be taken, e.g., quarantine requirements.
- Communication strategies such as how and what information will be communicated to employees, suppliers and customers.
- Where employees will work, e.g., home, in the office or in alternative temporary offices.
- At what stage will the workplace be closed and who will decide that.
- How to deal with infection and/or deaths of colleagues, e.g., counselling.
- A mechanism for determining whether employees, suppliers and customers will be allowed access to the workplace, especially if they show symptoms of being infected by COVID-19.
- What to do with high-risk/exposure staff (e.g., pregnant, key employees and employees who travel).
AFTER AN OUTBREAK
- Ways to ensure that employees and customers have fully recovered before they are allowed back into the workplace.
- Rehabilitation for sick employees returning to the workplace.
Communication with employees and flexibility on enforcing requirements imposed on employees under their contract of employment will be important in maintaining employee relations and reducing anxiety and panic during an outbreak. Therefore, depending on the circumstances, employers may wish to:
- Discuss with staff the possibility of a workplace closure prior to closing.
- Allow employees to take annual leave or unpaid leave once sick leave has been exhausted.
- Allow employees to work from home.
- Explore salary reduction or unpaid leave as an alternative to termination of employment where business has slowed down.
Employers should make visitors to its offices aware of any health and safety hazards associated with entering the workplace before any intended visit, where reasonably practicable.