Enterprise survival battle against "epidemic"——labor contract termination and layoffs
Question 1: Can the company terminate the labor contract with the employee suspected of suffering from the novel coronavirus pneumonia?
Answer: The enterprise shall not terminate the labor contract on this ground.
Nuo Di’s comment: According to the regulation of local governments, the novel coronavirus infection pneumonia patients, suspected patients and close contacts, who can't provide normal work during the quarantine, treatment, medical observation or other emergency measures by the government, shall be paid as usual and shall not be terminated the labor relationship.
Please refer to the Notice of Shanghai Human Resources and Social Security Bureau on the Implementation of Human Resources and Social Security Support Measures in response to the novel coronavirus-infected pneumonia epidemic.
Question 2: If the employee's labor contract expires during the quarantine period due to epidemic prevention and control, can the enterprise terminate the labor contract?
Answer: No, the term of the labor contract shall be extended in accordance with the provisions.
Nuo Di’s comment: According to the Notice of General Office of Human Resources and Social Security Ministry about properly handle labor relations during novel coronavirus infection pneumonia epidemic prevention and control period, if the labor contract expires when the laborer is receiving the medical treatment, under medical observation, quarantine or any other emergency measures taken by the government because of infection, suspected or close contact with the novel coronavirus, the labor contract shall be automatically extended to when medical observation period expires, the isolation period expires or the end of emergency measures taken by the government.
Question 3: The employee has applied for resignation before the Spring Festival in 2020. If the resignation formalities cannot be handled due to the extended holiday for epidemic prevention and control, will the resignation be valid? Can we withdraw it?
Answer: The resignation is valid and cannot be withdrawn.
Nuo Di’s comment: Article 37 of the Labor Contract Law stipulates that a laborer may terminate his labor contract by giving a written notice to the enterprise 30 days in advance. The notification that the laborer puts forward to dissolve the labor contract can have effect when it reaches the enterprise. Therefore, if the employee's resignation application is in line with his/her real intention, the failure to complete the resignation procedures due to the extension of holiday because of the epidemic prevention and control will not affect the legal effect of his/her resignation.
Question 4: Can the company terminate the labor contract with employees suspected of contracting the novel coronavirus pneumonia and refusing to cooperate with quarantine and treatment?
Answer: If the employee's refusal to cooperate with quarantine or medical treatment is serious enough to constitute a crime and is investigated for criminal responsibility according to law, the company may terminate the labor contract in accordance with the provisions of Article 39 (6) of the Labor Contract Law. If the employee's behavior is relatively minor and has not constituted a crime, such as his disobedience to management, his failure to cooperate when the relevant institutions take medical measures, or his obstruction of the emergency personnel to perform their duties, his behavior seriously violates the rules and regulations of the company, the company may terminate the labor contract according to law.
Nuo Di’s comment: According to the provisions of Article 1 of the Interpretation on the Specific Application of Law in Criminal Cases concerning the Prevention and Control of Emergencies of Infectious Diseases and other Disasters, if the suspected employee refuses to accept quarantine, compulsory isolation or treatment, and the negligence causes the spread of infectious diseases, which is serious and endangers public security, it shall constitute a crime. If the employee has such behavior, the enterprise can report it to the health department or the police station.
Question 5: Due to objective reasons such as prevention and control measures, the laborer cannot return to work on time, can it be regarded as absenteeism?
Nuo Di’s comment: If the laborer cannot be returned to work due to prevention and control measures, the enterprise can ask the employees to provide relevant documents (such as isolation, closure or shut-down notice of villages and roads issued by the government), and the enterprise can give priority to the arrangement of annual leave for employees.
Except that the employee did not return to work as scheduled due to personal reasons, it cannot be treated as absenteeism.
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