2020年伊始，一場突如其來的新型冠狀病毒肺炎疫情席卷大江南北，令中國的經濟發展蒙上了一層陰影，所幸中國政府采取了積極措施進行應對，目前已基本遏制住本國疫情，企業復產復工也都基本得以恢復。然而，疫情對經濟的影響已然顯現，在華的外資企業自然無法獨善其身。英國商會對其會員企業的調查結果顯示，高達97%的被調查公司認為本次疫情對其運營活動造成了不同程度的負面影響。人才是企業發展的核心要素，因此，勞動人事問題（包括降薪、經濟性裁員、復產復工、工傷認定等）成了企業在解決經營困境的同時亟需解決的問題。本團隊近期收到不少外資企業客戶關于疫情影響下勞動人事問題的法律咨詢，因此擬以此文就相關問題進行簡述，以期對廣大在華外資企業提供有益參考。
At the beginning of the year 2020, a sudden outbreak of the Novel Coronavirus Pneumonia swept over mainland China, and casted a shadow over China’s economic development. Fortunately, our Chinese government has taken proactive measures and has basically restrained further outbreak inboard, as a result of which, production and business operation of most enterprises have been resumed. However, the impact of the epidemic on economy has shown, certainly, those foreign invested enterprises (“FIEs”) in mainland China cannot be immune. According to the result of a survey with those company members of British Chambers of Commerce in China, 97% of the surveyed members believe that the virus has brought varying degrees of negative impact on their operations. Talent is the core element of enterprise development, therefore, labor and personnel issues (including pay cut, economic layoff, resumption of production and operation, identification of work-related injury, etc.) have become key issues to be resolved urgently while business distress being solved by enterprises. Recently, our team have received many inquiries from our FIE clients regarding those labor and personnel issues due to the impact of epidemic, hence, this article is intended to brief relevant issues to provide useful reference for those FIEs in mainland China.
1. 是否能夠以疫情為由實施降薪或進行經濟性裁員？
Whether pay cut or economic layoff on the ground of the epidemic is legal?
如前所述，疫情必然會給外資企業的經營造成負面影響，然而，外企是否就能因此實施降薪或進行經濟性裁員呢？根據人社部辦公廳《關于妥善處理新型冠狀病毒感染的肺炎疫情防控期間勞動關系問題的通知》，“企業因受疫情影響導致生產經營困難的，可以通過與職工協商一致采取調整薪酬、輪崗輪休、縮短工時等方式穩定工作崗位，盡量不裁員或者少裁員”。如何理解這一表述呢？我們理解，在生產經營困難的情況下“調整薪酬”，自然只可能調低而不可能調高，很顯然，相關部門并不反對企業因經營困難而實施降薪；而對于因疫情而導致的經濟性裁員，官方的措辭為“盡量不或少”裁員，而非“禁止”裁員，也就是說，勞動人事部門對此也采取了較為寬容的態度。不過，鑒于人社部原則上倡導企業避免或減少裁員，因此，對于確因疫情導致經營困難而需實施經濟性裁員的外資企業，建議應在專業律師的協助下，并在嚴格遵循《勞動合同法》等相關法律法規關于裁員的具體流程和規范的前提下進行相關操作，以確保合法合規。此外，對于實施降薪，也應在與員工協商一致的基礎上進行，以避免因違反法律的強制性規定而導致的賠償責任[1]。
As above-mentioned, the outbreak of epidemic will inevitably bring negative impact on the business operation of FIEs, however, whether FIEs have the right to implement pay cut or economic layoff on the ground of the epidemic? In accordance with the Notice of the General Office of the Ministry of Human Resources and Social Security on Properly Handling Labor Relation Issues during the Period for Prevention and Control of the Novel Coronavirus-infected Pneumonia Epidemic, where an enterprise has difficulties in production and operation due to the impact of epidemic, it may stabilize posts by adjusting salaries, rotating posts and taking holidays, shortening working hours or other means through negotiating with employees and by reaching an agreement, so as to avoid or reduce layoffs to the greatest extent. How to understand this expression? We understand that the “salary adjustment” due to difficulty in production and operation can only be pay cut instead of pay increase. Obviously, relevant authority does not oppose such pay cut by enterprises due to operation difficulty. As to the economic layoff resulted by epidemic, the official expression is “to the greatest extent to avoid or reduce” instead of “to prohibit” layoff, in other words, our human resource authority has taken a relatively tolerant attitude towards it. However, given that Ministry of Human Resources and Social Security in principle requires enterprises to avoid or reduce layoffs, therefore, for those FIEs which really need to implement economic layoffs due to difficulties on business operations resulted from epidemic, we suggest that they shall be supported by professional lawyers to strictly follow the rules and procedures regarding layoff under relevant laws and regulations such as Labor Contract Law, thus to ensure the legality and compliance thereof. In addition, the pay cut shall be implemented based on the agreement with employees, to avoid any liability caused by violation of mandatory provisions of law[2].
2. 如何有序推進復產復工？
How to resume production and business operation orderly?
考慮到疫情爆發于春節假期中，不少外企員工紛紛回家過年或去境內外旅游。而短時期內巨大的人員流動勢必會給疫情防控帶來極大挑戰，因此，復工復產不可能一蹴而就。如何在遵守疫情防控相關規定的前提下，盡快恢復生產經營活動，以最大限度減少疫情對企業造成的損失？在這方面，我們的一家英資客戶，全球著名的地產經紀商的做法就非常值得借鑒。
根據該客戶的相關政策：首先，在前期合理安排延長休假與居家辦公的基礎上，自2020年3月2日起，在嚴格執行返滬人員居家隔離規定的前提下，采取“現場辦公（3天）+居家辦公（2天）”相結合的過渡期辦公模式；其次，實行錯峰上下班；再次，針對尚在隔離期或尚未返滬的員工，除有條件實施居家辦公的之外，統一以帶薪年休假抵扣未到崗時間，年休假抵扣完畢尚無法正常返崗的，則按國家關于停工、停產期間的工資支付規定辦理。或許有人會提出質疑：企業可以單方面安排其員工的帶薪年休假而無需征得員工同意嗎？對于這一點，《職工帶薪年休假條例》中是這么規定的：單位根據生產、工作的具體情況，并考慮職工本人意愿，統籌安排職工年休假。意即：用人單位有權對其職工的年休假做出具體安排，只不過在做出安排的同時，應“考慮”職工的意愿，而非“征得職工的同意”。換言之，企業有權單方面對其員工的帶薪年休假（包括休假的具體時間和天數等）做出安排而無需征得員工同意。不過，我們也留意到，在人社部發布的《關于做好新型冠狀病毒感染肺炎疫情防控期間穩定勞動關系支持企業復工復產的意見》中提及，對不具備遠程辦公條件的企業，應與職工協商優先使用帶薪年休假、企業自設福利假等各類假期。如廣大外企擬在疫情時期安排員工休假，建議盡量與其進行充分溝通，并保留溝通痕跡（如電子郵件或微信聊天記錄等），在實在無法與員工達成一致的情況下，可單方面出具書面的《休假通知》，并在通知中充分闡明企業做出安排的理由和與員工進行溝通的過程，以避免產生不必要的勞動糾紛。
Given that the outbreak of epidemic happened during Spring Festival, many employees of FIEs went back to their hometowns or made domestic/overseas travels. Movement of personnel within a short period will absolutely impose enormous challenges on the prevention and control of the epidemic. Therefore, it is impossible to resume the production and business operation overnight. How to resume the production and business operation as soon as possible with the compliance of relevant regulations regarding the prevention and control of epidemic, thus to minimize the loss of enterprises incurred due to epidemic? Action taken by one of our Britain-invested clients, a world-renowned real estate agent is worthy of attentions. According to the relevant policy of our client: firstly, based on proper arrangement of extension of holidays and work-from-home at earlier stage, the transitional office mode of “3 days of on-site + 2 days of work-from-home” has been taken since Mar. 2 of 2020 when strictly complying with home quarantine regulation of return-to-Shanghai personnel; secondly, peak commute has been implemented; thirdly, for those who are still at quarantine or out of bound, their non-attendance time will be deducted by paid annual leave (except for those who are able to work from home), and, if they still cannot back to work normally after all the paid annual leave days are deducted, the national regulation in relation to wage payment during suspension will be implemented. There may be question: whether enterprise has the right to unilaterally arrange the paid annual leave of its employees without their consent? To this question, Regulations on Paid Annual Leave of Employees has specified as such: employers shall plan and arrange for their employees to take annual leave according to the actual production and work status and taking into account the personal preference of the respective employees. That is to say, employers have the right to arrange the annual leave of their employees by taking into consideration of the will of employees, instead of obtaining their consent. In other words, enterprise shall have the right to unilaterally make arrangement on the paid annual leave of its employees (including the time and length thereof, etc.) without their consent. But we also notice that, it is mentioned in Opinions on Stabilizing Employment Relationship during the Period for Prevention and Control of the Novel Coronavirus-infected Pneumonia Epidemic to Support Enterprises in Resuming Work and Production released by Ministry of Human Resource and Social Security that, the enterprises not meeting the remote working conditions shall negotiate with their employees on the priority to take various kinds of paid annual leave and welfare leave given by the enterprises themselves. When FIEs tends to arrange annual leave of their employees during the epidemic period, it is suggested that sufficient communications shall be made with their employees and the traces of communication shall be kept such as email or we-chat record. In case of failure in reaching an agreement, a written unilateral Annual Leave Notice can be issued, in which the reason for leave arrangement and communication process shall be clearly stated, to avoid any unnecessary labor dispute.
3. 復工復產后，員工若感染新冠肺炎，能否認定為工傷？
If certain employee is infected after resumption of production and business operation, whether it can be identified as work-related injury?
對于此次疫情“吹哨人”李文亮醫生因感染新冠肺炎病毒而不幸離世，武漢市人社局認定其系“在工作時間和工作場所內，因工作原因受到事故傷害”的情形，因此認定為工傷。那么，普通的外企職員如感染了新冠肺炎，是否能夠被認定為工傷呢？
As to the unfortunate death of Doctor Wenliang Li, the “Whistleblower” of the epidemic due to the Novel Coronavirus, bureau of human resource and social security of Wuhan identified it as work-related injury which is attributed to the situation of being injured in an accident in the course of work during working hours and within work premises. So, if normal employees of FIEs are infected with the virus, whether they can be identified as work-related injury?
根據人社部就《關于因履行工作職責感染新型冠狀病毒肺炎的醫護及相關工作人員有關保障問題的通知》進行的說明，如果不是從事新冠肺炎預防和救治的醫護及相關工作人員，感染新冠肺炎不能認定為工傷。然而在此前，廣東和浙江均明確[3]：勞動者因工作原因感染新冠肺炎的，應認定為工傷。盡管各地在勞動人事方面的政策存在較大差別，經研究與疫情相關的工傷判例，我們傾向于認為普通外企職員如在工作中感染新冠肺炎，被認定為工傷的可能性較大。至于何為“工作原因”，經研究與疫情相關的工傷判例可知：雖然工作本身不會導致患病，但是如果在勞動者做好必要的防護措施的情況下，經查明確系因用人單位未給勞動者提供安全的工作環境，從而導致勞動者患病，那么司法機關還是傾向于認定勞動者系工傷。
According to the interpretation of Ministry of Human Resource and Social Security regarding Notice on Issues Concerning the Security of Medical Care and related Staff Infected with Novel Coronavirus Pneumonia in Performing Their Duties, those infected personnel who are not medical care and other related staff engaging in the prevention and treatment in respect of the Novel Coronavirus, shall not be identified as work-related injury. However, before this statement, both Guangdong and Zhejiang Province defined that certain employee who is infected with Novel Coronavirus Pneumonia due to work reason shall be identified as work-related injury[4]. Although there are big difference among various places on labor and personnel policies, we tend to consider that there exists large possibility for normal employees of FIEs being infected with the virus to be identified as work-related injury based on research of judicial cases relating to epidemics. As for what is “work reason”, it can be known from several judicial cases regarding work-related injury due to epidemic that, although work itself does not cause infection with epidemic, but, if it can be ascertained that certain employee who has taken necessary protection measures is infected with epidemic due to lack of safe working environment, judicial authorities will tend to identify such situation as work-related injury.
4.在疫情期間，在華外籍高管們應如何進行自我管理？
For those FIEs’ foreign executives based in China, how to manage themselves during the epidemic period?
近期，“拜爾跑步女”事件上了熱搜。據相關報道，拜耳北京公司一澳籍女高管返回北京后，拒不按規定居家隔離，執意外出跑步且不戴口罩，面對防疫人員勸說，該女子不聽勸告，且態度蠻橫。該事件在網上持續發酵，最終以拜爾公司開除該女員工畫上句號。拜爾公司在公開聲明中稱，系“根據相關規定”辭退該名女員工。拜爾公司的這一決定自然是大快人心，不過也引發了一些質疑：其是否有權約束員工在工作時間以外的行為？這樣的開除決定是否合法？在(2013)長民四(民)初字第347號勞動合同糾紛案中，司法機關給出了肯定的回答。某航空公司一空姐因于非工作時間在微博上發表對該航空公司的不利言論而被航空公司以嚴重違反內部規章制度為由解雇，法院最終支持了該航空公司的解雇決定，理由是：基于微博的開放性以及在現代社會的影響力和傳播力，空姐的言論已經對其雇主的聲譽以及品牌建設造成了實質性的不利影響威脅，其行為違反了其雇主的內部規定。因此，我們在此友情提醒廣大外企的外籍高管們，切勿步“拜爾跑步女”的后塵，在疫情期間，應務必遵守中國國家和地方關于出入境和疫情防控的相關規定和政策，自覺接受隔離，并聽從防疫人員的建議。一旦出現疑似感染癥狀，應立即就近接受診治，并如實說明近期活動和密切接觸人員等情況，以便有關部門迅速采取防控措施。同時，我們也建議外企盡快修訂、完善《員工手冊》和相關的內部規章制度，以確保公司在類似事件發生時能夠合法合規地迅速、果斷采取措施。
Recently, the event of “running woman of Bayer” has become one of the hottest searches. It is reported that one female Australian executive of Bayer Beijing company refused to comply with relevant regulation of home quarantine and insisted on running outdoor without mask, in addition, when being persuaded by anti-epidemic worker, she rejected the advice with an arrogant attitude. The event has kept simmering on internet and the result of which is that such female employee was finally fired by Bayer. It is indicated in Bayer’s public statement that its fire decision was made “in accordance with relevant regulations”. Such decision of Bayer has cheered people greatly, yet raised certain question: whether it has the power to manage behaviors of its employees out of working hours? and, whether such fire decision is legal? In one labor contract dispute which was judged in 2013, People’s Court of Changning District in Shanghai gave a positive answer. One air hostess of certain airline company was fired by the company due to her negative comments made on microblog against the company at spare time, the cause of which was severely violation of internal rules and regulations. The court finally supported the fire decision of the company with the reason that, as microblog had openness, big influence and communication power, the comments of such air hostess had constituted a threat of material adverse impact on the reputation and brand construction of her employer, so that her behavior had violated the internal regulations of her employer. Therefore, we hereby kindly remind those foreign executives of FIEs, please never follow “running woman of Bayer”, and please be sure to comply with relevant regulations and policies regarding prevention and control of epidemic as well as immigration, consciously accept quarantine, and follow the advice of anti-epidemic workers. Those who have symptoms of infection shall seek immediate medical treatment at the nearest hospital and truthfully describe situations such as their recent activities and close contacts to relevant authorities for rapid prevention and control measures. Meanwhile, it is suggested that FIEs shall revise and improve their Employee Handbook as well as relevant internal regulations, thus to ensure the prompt and decisive measures to be taken on the basis of legality and compliance when similar event happens.
[1] 《勞動合同法》
Labor Contract Law
第三十條 用人單位應當按照勞動合同約定和國家規定，向勞動者及時足額支付勞動報酬。
用人單位拖欠或者未足額支付勞動報酬的，勞動者可以依法向當地人民法院申請支付令，人民法院應當依法發出支付令。
Article 30 Employers shall promptly pay labor remuneration to workers in full amount pursuant to the stipulations of the labor contract and the provisions of the State.
Where an employer defaults on payment or fails to promptly pay labor remuneration in full amount, a worker may apply to a People's Court for an order for payment and the People's Court shall issue an order for payment pursuant to the law.
第三十八條 用人單位有下列情形之一的，勞動者可以解除勞動合同：
Article 38 Under any of the following circumstances, a worker may rescind the labor contract:
……
(二)未及時足額支付勞動報酬的；
(2) where the employer fails to promptly pay labor remuneration in full amount;
……
第四十六條 有下列情形之一的，用人單位應當向勞動者支付經濟補償：
Article 40 Under any of the following circumstances, the employer shall make economic damages to the worker:
（一）勞動者依照本法第三十八條規定解除勞動合同的；……
(1) the worker has rescinded the labor contract pursuant to the provisions of Article 38;……
第八十五條 用人單位有下列情形之一的，由勞動行政部門責令限期支付勞動報酬、加班費或者經濟補償；勞動報酬低于當地最低工資標準的，應當支付其差額部分；逾期不支付的，責令用人單位按應付金額百分之五十以上百分之一百以下的標準向勞動者加付賠償金：
Article 85 Under any of the following circumstances, the labor administrative authorities shall order the employer to pay labor remuneration, overtime wage or economic damages within a stipulated period; where the labor remuneration is lower than the minimum wage standard at the locality, the shortfall shall be paid; where payment is not made within the stipulated period, the employer shall be ordered to pay compensation to the worker based on 50% to 100% of the amount payable:
(一)未按照勞動合同的約定或者國家規定及時足額支付勞動者勞動報酬的；……
(1) the employer fails to pay labor remuneration to a worker pursuant to the provisions of the labor contract or fails to promptly pay labor remuneration in full amount pursuant to the provisions of the State;……
[2] Labor Contract Law
Article 30 Employers shall promptly pay labor remuneration to workers in full amount pursuant to the stipulations of the labor contract and the provisions of the State.
Where an employer defaults on payment or fails to promptly pay labor remuneration in full amount, a worker may apply to a People's Court for an order for payment and the People's Court shall issue an order for payment pursuant to the law.
Article 38 Under any of the following circumstances, a worker may rescind the labor contract:
……
(2) where the employer fails to promptly pay labor remuneration in full amount;
……
Article 40 Under any of the following circumstances, the employer shall make economic damages to the worker:
(1) the worker has rescinded the labor contract pursuant to the provisions of Article 38;……
Article 85 Under any of the following circumstances, the labor administrative authorities shall order the employer to pay labor remuneration, overtime wage or economic damages within a stipulated period; where the labor remuneration is lower than the minimum wage standard at the locality, the shortfall shall be paid; where payment is not made within the stipulated period, the employer shall be ordered to pay compensation to the worker based on 50% to 100% of the amount payable:
(1) the employer fails to pay labor remuneration to a worker pursuant to the provisions of the labor contract or fails to promptly pay labor remuneration in full amount pursuant to the provisions of the State;……
[3]廣東省政府新聞辦于2020年2月6日舉行的疫情防控新聞發布會上明確：勞動者在工作期間因工作原因感染新型冠狀病毒肺炎，應根據《社會保險法》和《工傷保險條例》認定為工傷，根據《工傷保險條例》的規定享受工傷保險待遇。
根據浙江省高級人民法院民一庭關于印發《關于規范涉新冠肺炎疫情相關民事法律糾紛的實施意見（試行）》的通知》（浙高法民一[2020]1號）第一條第5款：勞動者在疫情防控期間因履行工作職責而感染新冠肺炎的，應認定為工傷，依法享受工傷保險待遇。
[4] On Feb.6 of 2020, the Press Office of Guangdong Municipal Government specified at the press conference regarding prevention and control of epidemic that, certain employee who is infected with Novel Coronavirus Pneumonia due to work reason during working hours shall be identified as work-related injury in accordance with Social Security Law and Regulations on Work-related Injury Insurance, and shall enjoy work-related injury insurance benefits according to Regulations on Work-related Injury Insurance.
It is specified in Item 5 of Article 1 under the Implementation Opinions of the First Civil Division of Supreme People‘s Court of Zhejiang Province on Standardizing Relevant Civil Legal Disputes in relation to Novel Coronavirus Pneumonia (trial) that certain employee who is infected with Novel Coronavirus Pneumonia due to work reason during the prevention and control period of epidemic, shall be identified as work-related injury and shall enjoy work-related injury insurance benefits by law.
