新冠病毒疫情防控时期企业用工问题解答（一）

2020-02-17 李玉玲律师团队

针对近期新冠病毒疫情防控期间各企业人力资源部门关注的劳动用工问题，汉盛律师事务所李玉玲律师团队就相关法律问题进行了简要的分析，谨供企业决策参考。

Regarding the labor issues concerned by enterprises during the prevention and controlling period of New Coronavirus Pneumonia (“NCP”), Attorney Ms. Yuling Li and her team analyze the following legal issues for the enterprises’ reference.

Q1: 春节长假延期多少天？延长的假期能否用年假冲抵？

How many days has the Spring Festival Holiday been extended? Should the extended holidays be offset by annual leave?

A: 国务院办公厅《关于延长2020年春节假期的通知》规定，延长2020年春节假期至2月2日（农历正月初九，星期日），2月3日（星期一）起正常上班；因疫情防控不能休假的职工，应根据《中华人民共和国劳动法》规定安排补休，未休假期的工资报酬应按照有关政策保障落实。

According to the Notice of the General Office of the State Council on Extending the Spring Festival Holiday in 2020, “The holiday of the Spring Festival in 2020 will be extended to February 2 (the ninth day of the first lunar month, Sunday), and normal business will be resumed from February 3rd (Monday)”, “The employees who cannot take leave due to epidemic prevention and controlling shall be given compensatory leave in accordance with the provisions of the Labor Laws of the People's Republic of China, and the wage payment for untaken leave shall be guaranteed and implemented in accordance with relevant policies”.

因此，春节假期由1月30日延长至2月2日，其中2月2日为周日休息时间，实际上增加的休息时间为2天。同时，延长的假期属于国务院根据疫情防控需要对全体公民增加的假期，不能用年假冲抵。

The Spring Festival is extended from January 30 to February 2, in which February 2 is Sunday, therefore the increased holidays are 2 days. The Spring Festival is extended on the basis of epidemic prevention and controlling and is available to everyone and cannot be offset by annual leave.

Q2: 如何处理在延长的春节假期间因疫情防控不能休假的问题？

How to deal with the issue of failing to take off holidays due to epidemic prevention and controlling during the extended holidays?

A: 根据《关于做好新型冠状病毒感染肺炎疫情防控期间稳定劳动关系支持企业复工复产的意见》的规定：“对在春节假期延长假期间因疫情防控不能休假的职工，指导企业应先安排补休，对不能安排补休的，依法支付加班工资”。According to the Opinions on Stabilizing Labor Relations and Supporting Enterprises to Resume Work and Production During the Period of Prevention and Controlling of New Coronavirus Pneumonia, “Where the employee is unable to take holidays during the extended period of Spring Festival as a result of prevention and controlling of the NCP, the enterprise shall be instructed to arrange compensatory leave for the employee first, if the compensatory leave cannot be arranged, the employee is entitled to overtime salary during the extended period of Spring Festival in accordance with the laws”.

Q3: 职工能否撤回节前已经要求在1月31日至2月1日期间休年假的申请?

Whether the employee has the right to withdraw the application for annual leave from January 31 to February 1 or not?

A: 职工可以申请撤回。首先，文件已经明确规定延长的假期属于全体公民的应休假期，因此不可以以年假抵扣；其次，员工在此期间申请休年假的法律基础已经发生变化，若用人单位如果不批准对该职工不公平，会损害该职工的合法权益。

The employee has the right of withdrawal. Firstly, there is the Notice to regulate that the extended holidays are available to all citizens, so it cannot be offset with annual leave. Secondly, the legal basis for employees to apply for annual leave has fully changed, if the employer does not approve such withdrawal, the legitimate rights and interests of the employee will be infringed.

Q4: 假期延长期间工资如何计发？

How to pay salary during the extended holidays?

A: 根据《全国年节及纪念日放假办法》规定，全年法定节假日为11天；根据《关于延长2020年春节假期的通知》，将春节假期延长至2月2日。然而，未经法定程序，国务院办公厅无权对此《全国年节及纪念日放假办法》进行修改，因此，延长的春节假期应当定性为休息日非法定节假日，对于在此期间加班的企业职工，应根据《劳动法》第四十四条的规定，作为休息日加班给予补休或按规定支付不低于工资200%的工资报酬。

According to the Regulations on Public Holidays for Festivals and Commemorative Days, “the annual statutory holidays are 11 days”, and Notice of the General Office of the State Council on Extending the Spring Festival Holiday in 2020, “the Spring Festival Holiday was extended by February 2”. However, the General Office of the State Council has no right to revise the Regulations on Public Holidays for Festivals and Commemorative Days without legal procedure, therefore the extended holidays shall be regarded as normal holidays instead of legal holidays, where the employees work overtime during such extended holidays, the enterprise shall arrange compensatory leave or pay wages for the employees not less than 200% of the normal wage according to Article 44 of the Labor Laws of the People’s Republic of China.

Q5: 上海是如何规定延迟复工的？

What’s the regulations in Shanghai on the delayed resumption of work?

A: 根据《上海市人民政府关于延迟本市企业复工和学校开学的通知》规定，上海的企业除涉及保障城市运行必需、保障城市运行必需、保障城市运行必需以及其它涉及重要国计民生的相关企业除外，不得早于2月9日24时前复工。

According to the Notice of Shanghai Municipal People's Government on Postponing Enterprises’ Resumption of Work and Schools’ Opening in Shanghai, “except for the enterprises that are indispensable for safeguarding the operation of the city, enterprises involving necessity for epidemic prevention and controlling, or necessity of life of the masses and other enterprises that are important to the national economy and the people's livelihood, the enterprise within the jurisdiction of Shanghai shall resume their work no earlier than 24: 00 PM on February 9”.

Q6: 延迟复工的适用主体？

What’s the applicable subject of the delayed resumption of work？

A: 根据上海政府部门发出的文件规定，延迟复工的适用范围是所属区域内的各类企业，笔者认为，对于个体经济组织、民办非企业单位等组织，比如律师事务所等，原则上不受该通知约束。但是考虑到目前防控疫情的需要，笔者仍然建议个体经济组织、民办非企业单位等组织同样参照执行。

According to the document issued by the Shanghai government, the applicable subjects for the delayed resumption of work include all kinds of enterprises within its jurisdiction; therefore, individual economic organizations, private non-enterprise units and other organizations, such as law firms, are not bounded by the notice in principle. However, considering the needs of prevention and controlling against NCP, the individual economic organizations, private non-enterprise units and other organizations are advised to refer to the aforesaid document to delay resumption of work as well.

Q7: 延迟复工或未返岗期间工资如何计发？

How to calculate and pay salary during the period of delay or failure to return to work?

A: 根据人社部于2020年2月7日发布的《关于做好新型冠状病毒感染肺炎疫情防控期间稳定劳动关系支持企业复工复产的意见》的规定：“在受疫情影响的延迟复工或未返岗期间，对用完各类休假仍不能提供正常劳动或其他不能提供正常劳动的职工，指导企业参照国家关于停工、停产期间工资支付相关规定与职工协商，在一个工资支付周期内的按照劳动合同规定的标准支付工资；超过一个工资支付周期的按有关规定发放生活费”。

According to the Opinions on Stabilizing Labor Relations and Supporting Enterprises to Resume Work and Production During the Period of Prevention and Controlling of New Coronavirus Pneumonia issued by the Ministry of Human Resources and Social Security of the People’s Republic of China on 7th February 2020, “During the period of delay or failure to return to work due to prevention and controlling of NCP, if the employee is unable to provide normal work after the deduction of all available holidays, the enterprise shall be instructed to consult with the employee on the payment of wages during the period of suspending business or operation with reference to the relevant provisions of the state, where the period of delay or failure to resume work is less than a salary payment cycle, the enterprise shall pay salary to its employee pursuant to the employment contracts; where the extension period exceeds a salary payment cycle, the enterprise shall pay living expenses to its employee according to related regulations”.

因此，根据人社部的意见，自2月3日起至因疫情影响延迟复工或未返岗的最后一日期间的工资，企业先用各类休假抵扣，对用完各类休假仍不能提供正常劳动的职工，且不能提供正常劳动的期间在一个工资支付周期内的，企业仍按照劳动合同规定的标准支付工资；超过一个工资支付周期的，则按有关规定发放生活费。

Therefore, according to the above Opinions, the salary from February 3 to the last day of delay or failure to resume work shall be deducted from various leaves available to employee first, where the employee is still unable to provide normal work after such deduction and the period of failure to provide normal work is less than a salary payment cycle, the enterprise shall pay its employee pursuant to the employment contracts; if the period of failure to provide normal work exceeds a salary payment cycle, the enterprises shall pay living expenses to its employees pursuant to related regulations.

在上海，根据2020年1月28日上海市人社局通过其官方微信公众号就延迟复工发出的解答中，认为“延迟复工属于休息日，对于休息的职工，企业应当按照劳动合同约定的标准支付工资；对于承担保障等任务上班的企业职工，应作为休息日加班给予补休或按规定支付200%工资”。浦东法院2020年2月12日发布《疫情下劳动用工法律问题十问十答》第二条认为，若当地政府将延迟复工期间认定为休息日的，则员工正常上班的，需要安排补休或支付200%工资；若当地政府将延迟复工期间认定为停工停产期，则按停工停产日规定处理。

In Shanghai, according to the explanations on delayed period for resumption of work made by the Shanghai Municipal Human Resources and Social Security Bureau on January 28, 2020 on its official WeChat account, “The delayed period for resumption of work shall be defined as rest days, the enterprise shall pay salary for its employees who are not working pursuant to the labor contract; where the employees go to work for security tasks or other tasks during the delayed period for resumption of work, it shall be considered as overtime work during the rest days, and the enterprise shall arrange compensatory leave or pay its employees 200% of the salary in accordance with the regulations.” Article 2 of Ten Q&As about Labor Issues under the Epidemic Period published by People’s Court of Pudong District on Feb 12, 2020 provides that in case the local government deems the delayed period for resumption of work to be rest days, compensatory leave or 200% salaries shall be paid if the employees are working as normal; in case the local government deems the delayed period for resumption of work to be suspension days of business and operation, salaries shall be made according to the regulations regarding suspension days of business and operation.

由此可知，上海人社局以解答的方式将延迟复工定性为休息日；但是，该观点备受争议，主要原因包括：第一，上海市人社局是否有权直接将迟延复工定性为休息日，我们认为界定休息日应该由法律或者行政法规规定，人社局无权通过解答的方式来对休息日进行界定；第二，上海市人社局的解答究竟是否应该认定为当地政府的规定值得商榷；第三，上海市人社局的解答与人社部在2月7日发出的《关于做好新型冠状病毒感染肺炎疫情防控期间稳定劳动关系支持企业复工复产的意见》中认为延迟复工期间应按停工停产的规定发放工资相冲突，因此不应该适用。

It can be seen that Shanghai Municipal Human Resources and Social Security Bureau deems the delayed period for resumption of work as rest days in its explanations; however, such explanations are greatly challenged for the following reasons: I, whether Shanghai Municipal Human Resources and Social Security Bureau has the right to define the delayed period for resumption of work as rest days, we think that rest days shall be determined by laws or regulations, but not by the explanations by Shanghai Municipal Human Resources and Social Security Bureau; II, whether the explanation by Shanghai Municipal Human Resources and Social Security Bureau shall be regarded as one which is made on behalf of Shanghai government is debatable; and III, the explanation by Shanghai Municipal Human Resources and Social Security Bureau is in conflict with the spirit of Opinions on Stabilizing Labor Relations and Supporting Enterprises to Resume Work and Production During the Period of Prevention and Controlling of New Coronavirus Pneumonia, which was issued by the Ministry of Human Resources and Social Security of the People’s Republic of China on 7th February 2020 with the opinion that salaries for the delayed period for resumption of work shall be made according to the standard for the period of suspension of business and operation, and therefore shall not be applicable.

对于在上海的企业，我们原则上建议认为上海市人社局的解答不适用，但是针对人社局所认定的“休息日”的延迟复工期间的工资支付，仍然有需要按照“休息日”标准支付200%工资（员工上班且不调休）或者支付标准工资（上班但调休或员工不上班）的风险。For the companies in Shanghai, we in principle advise the explanations made by Shanghai Municipal Human Resources and Social Security Bureau are not applicable；however, regarding the salary calculation for the “rest days” of delayed period for resumption of work as defined by Shanghai Municipal Human Resources and Social Security Bureau, it is still risky that 200% salaries need be paid for employees who are working but not granted compensatory leave, or normal salaries shall be paid for employees who are working but granted compensatory leave or who are not working.

Q8:企业在延迟复工期间是否应向劳动者发放奖金和津贴等？

Whether the enterprise shall pay bonuses and allowances to the employee during the delayed resumption of work or not?

A: 目前各项政策和法规并未明确规定正常出勤工资是否应当包含奖金和津贴等，笔者认为，若该奖金若是劳动者在正常出勤情况下可以获得的，则应当随同基本工资一并发放；若该奖金属于绩效奖金，即该奖金与业绩考核挂钩的，可以结合公司制度，决定是否发放。对于各类补贴和津贴，如车贴、饭贴等，可以结合公司制度的具体规定，决定是否予以发放。

At present, there are no specific policies or regulations to regulate whether the remuneration during the normal working period shall include bonuses and allowances or not, provided that the employee is entitled to the bonus when the attendance is normal, it is advised to pay the bonus together with the basic salary; if the bonus is included in the performance bonus, i.e., the employee must be evaluated under the standard of performance appraisal, the company may decide whether to pay the bonus or not according to the company rules. For all kinds of subsidies and allowances, such as travel allowance, meals allowance, and etc., the company may decide according to its policies.

Q9: 企业能否在延迟复工期间安排职工使用年休假?

Whether the enterprise is entitled to arrange annual leave for the period of delayed resumption of work or not?

A: 根据《关于做好新型冠状病毒感染肺炎疫情防控期间稳定劳动关系支持企业复工复产的意见》的规定：“对不具备远程办公条件的企业，与职工协商优先使用带薪年休假、企业自设福利假等各类假”。

According to the Opinions on Stabilizing Labor Relations and Supporting Enterprises to Resume Work and Production During the Period of Prevention and Controlling of New Coronavirus Pneumonia, “for the enterprise who is unable to provide remote-work environment, telecommuting, it shall negotiate with the employees to give priority to the use of paid annual leave, welfare leave granted by the enterprise and etc. for the delayed returning of work”.

因此，若企业不具备远程办公的条件，则可以与职工协商用带薪年假抵扣。

Therefore, where the enterprise is unable to provide remote-work environment, it may negotiate with the employees to give priority to the use of paid annual leave for the delayed returning of work.

Q10: 延迟复工导致工资发放日延迟如何处理？

How to deal with the delay in salary payment due to the delayed resumption of work?

A: 根据劳动部《工资支付暂行规定》第七条规定：“工资必须在用人单位与劳动者约定的日期支付。如遇节假日或休息日，则应提前在最近的工作日支付。”

According to the Tentative Provisions on Payment of Salary, “the salary must be paid on the date agreed upon by the employer and the employee. If such date falls upon a holiday or rest day, salary shall be paid in advance on the nearest working day”.

因延迟发放工资非用人单位的过错，所以不应理解为用人单位拖欠劳动者工资，但用人单位应尽可能在假期结束后的最近工作日即向劳动者补发工资，以免发生争议。

Since the delay in payment of salary shall not be attributed to the fault of employer, it should not be regarded as defaults on salary, it’s advised to pay on the nearest working day after resumption of work.

Q11: 若在延迟复工期间企业存在较大资金周转压力，能否延期支付工资？

Whether the enterprise is allowed to delay the payment of salaries under great pressure of capital turnover caused by the delayed resumption of work?

A: 根据《关于做好新型冠状病毒感染肺炎疫情防控期间稳定劳动关系支持企业复工复产的意见》的规定：“对暂无工资支付能力的，要引导企业与工会或职工代表协商延期支付，帮助企业减轻资金周转压力”。

According to the Opinions on Stabilizing Labor Relations and Supporting Enterprises to Resume Work and Production During the Period of Prevention and Controlling of New Coronavirus Pneumonia, “where the enterprise is unable to pay salary provisionally, it shall be instructed to negotiate with the labor union or the labor representative on delay in payment of salaries in order to assist in relieving capital turnover pressure of the enterprises”.

Q12: 企业能否与职工协商调整薪酬？

Whether the enterprises are allowed to adjust salaries through negotiation with the employees or not?

A: 根据《关于做好新型冠状病毒感染肺炎疫情防控期间稳定劳动关系支持企业复工复产的意见》的规定：“对受疫情影响导致企业生产经营困难的，鼓励企业通过协商民主程序与职工协商采取调整薪酬、轮岗轮休、缩短工时等方式稳定工作岗位”。因此，在企业受疫情影响严重导致生产经营困难的情况下，企业可以通过民主程序与职工协商调整薪酬。

According to the Opinions on Stabilizing Labor Relations and Supporting Enterprises to Resume Work and Production During the Period of Prevention and Controlling of Pneumonia Caused by Outbreak of New Coronavirus Infection, “in case of the difficulties in production and operation caused by outbreak of new coronavirus infection, the enterprises are encouraged to have consultation with employees on salary adjustment, work rotation and day-off rotation, shortening of working hours and other methods to stabilize the position through democratic procedure”. Therefore, when the enterprises are seriously affected by outbreak of new coronavirus infection and have difficulties in production and operation, they are allowed to adjust salaries through negotiation with the employees via democratic procedure.

Q13: 劳动者拒绝复工如何处理？

How to deal with the problem of refusing resumption of work?

A: 根据《关于做好新型冠状病毒感染肺炎疫情防控期间稳定劳动关系支持企业复工复产的意见》的规定：“对符合规定的复工企业，要指导企业提供必要的防疫保护和劳动保护措施，积极动员职工返岗。对不愿复工的职工，要指导企业工会及时宣讲疫情防控政策要求和企业复工的重要性，主动劝导职工及时返岗。对经劝导无效或以其他非正当理由拒绝返岗的，指导企业依法予以处理”。

According to the Opinions on Stabilizing Labor Relations and Supporting Enterprises to Resume Work and Production During the Period of Prevention and Controlling of New Coronavirus Pneumonia, “If the enterprise meets the conditions for resumption of work, guidance on providing necessary safeguard measures on virus prevention and work protection shall be given and staff shall be actively advised to resume work. For the employees who refuse to resume work, the labor union of the enterprise shall be instructed to publicize the requirements on the prevention and controlling of NCP in time and importance of resumption of work and initiatively persuade the employees to resume work in time. If persuasion is ineffective or the employees refuse to resume work without justified reasons, the enterprise shall be guided to deal with it in accordance with the laws”.

Q14: 从外地返沪的员工是否应当隔离14天？

Whether the employee returning from outside Shanghai should be isolated for 14 days or not?

A: 根据《上海市新型冠状病毒感染的肺炎疫情防控工作领导小组办公室通告》：“来自或途经湖北等重点地区的来沪、返沪人员，应按照相关规定，自抵沪之日起，严格落实居家隔离或集中隔离观察14天的要求，自觉向社区报告并接受管理，无异常情况的，到期后正常上班”。

According to the Notice from Office of Prevention and Controlling Group against New Coronavirus Pneumonia of Shanghai, “People who return to Shanghai from or passing by Hubei Province and other key areas shall strictly comply with the requirements of home isolation or centralized isolation observation for 14 days upon the date of arrival in Shanghai”.

Q15: 劳动者被隔离期间的工资如何计发？

How to pay salary when the employee is isolated?

A: 根据《关于做好新型冠状病毒感染肺炎疫情防控期间稳定劳动关系支持企业复工复产的意见》的规定：“对因依法被隔离导致不能提供正常劳动的职工，要指导企业按正常劳动支付其工资”。

According to the Opinions on Stabilizing Labor Relations and Supporting Enterprises to Resume Work and Production During the Period of Prevention and Controlling of New Coronavirus Pneumonia, “the enterprises shall be instructed to pay employees who were unable to provide normal work services as a result of being isolated in accordance with the laws based on the remuneration during the normal working period”.

根据《人力资源社会保障部办公厅关于妥善处理新型冠状病毒感染的肺炎疫情防控期间劳动关系问题的通知》规定可知，应当被隔离治疗或医学观察的人群包括新型冠状病毒感染的肺炎患者、疑似病人、密切接触者。

According to 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 Controlling of the New Coronavirus Pneumonia, people who shall be isolated for treatment or shall be implemented medical observation include the patient with pneumonia, a suspected patient or persons in close contact with a person with the novel coronavirus infection.

因此，对因依法被隔离导致不能提供正常劳动的职工，企业应当按正常劳动支付其工资。

Therefore, the enterprises shall pay employees who were unable to provide normal work services as a result of being isolated in accordance with the laws based on the remuneration during the normal working period.

Q16: 劳动者被感染新型肺炎，是否属于工伤？

Whether the infection of the employees with NCP shall be considered as work-related injuries?

A: 《关于因履行工作职责感染新型冠状病毒肺炎的医护及相关工作人员有关保障问题的通知》规定：“在新型冠状病毒肺炎预防和救治工作中，医护及相关工作人员因履行工作职责，感染新型冠状病毒肺炎或因感染新型冠状病毒肺炎死亡的，应认定为工伤，依法享受工伤保险待遇”。

According to the Notice on the Protection of Healthcare Workers and Related Workers Who Are Infected with New Coronavirus Pneumonia for Performing Their Duties, “if the doctors and nurses and relevant members are infected with NCP or died for NCP in the work of prevention and treatment, it should be entitled to work-related injury insurance pursuant to the laws”.

据此，在新型冠状病毒肺炎预防和救治工作中，因履行工作职责而感染新型冠状病毒的，属于工伤。对于受用人单位指派前往武汉从事其他工作而感染病毒是否属于工伤，目前未有明确规定，法院往往倾向于将此认定为工伤，但应结合各地具体的法规、政策进行认定。

Therefor those who are infected with new coronavirus pneumonia in the work of prevention and treatment shall be entitled to work-related injury insurance pursuant to the laws. However, if the employee was assigned by the enterprise to do work unrelated to the NCP and then was infected, currently there is no specific regulations to stipulate whether it shall be regarded as work-related injury or not. The courts tend to support the view of covering such infection into work-related injury in judicial practice. However, it depends on the regulations of specific laws and policies in various regions over the country.

Q17: 隔离期后仍需要继续治疗的，应如何计发工资？

How to pay salary if further treatment is needed after isolation period？

A: 根据《关于做好新型冠状病毒感染肺炎疫情防控期间稳定劳动关系支持企业复工复产的意见》的规定：“隔离期结束后，对仍需停止工作进行治疗的职工，按医疗期有关规定支付工资”。关于医疗期待遇的规定，全国各地区均出台了不同的规定，在上海主要依据的是《上海市劳动保障局关于病假工资计算的公告》。

According to the Opinions on Stabilizing Labor Relations and Supporting Enterprises to Resume Work and Production During the Period of Prevention and Controlling of New Coronavirus Pneumonia, “If the employee has to suspend its work for further treatment after isolation period, the salary during such further treatment period shall be paid under the relevant regulations of medical treatment period”. Regarding the salary during the medical treatment, different regions over the country have regulated different provisions, in Shanghai, the main legal basis is Announcement of the Shanghai Municipal Labor and Social Security Bureau on the Calculation of Sick Pay.

因此，职工在隔离期间内的治疗不计算在职工依法应享受的医疗期之内，在隔离期结束后仍需治疗的，则应计入医疗期，按照医疗期有关规定发放工资。

Therefore, the treatment of employees during the isolation period shall not be included in the medical treatment period of employees according to the laws. If the employee needs further treatment after the isolation period, the company shall pay the employee in accordance with the relevant regulations of medical treatment period.

Q18: 疫情期间，解除劳动关系如何处理？

How to deal with the termination of employment relationships during the prevention and controlling of NCP?

A: 根据《关于做好新型冠状病毒感染肺炎疫情防控期间稳定劳动关系支持企业复工复产的意见》的规定：“在疫情防控期间，要指导企业全面了解职工被实施隔离措施或政府采取的紧急措施情况，要求企业不得在此期间解除受相关措施影响不能提供正常劳动职工的劳动合同或退回被派遣劳动者”。

According to the Opinions on Stabilizing Labor Relations and Supporting Enterprises to Resume Work and Production During the Period of Prevention and Controlling of New Coronavirus Pneumonia, “The enterprise shall be instructed to have full understanding of the situation of isolation polices over staff and the emergency measures taken by the local governments. It is required that the enterprise shall not terminate with or return the dispatched staff with the employee who are unable to provide normal work due to the relevant measures”.

Q19: 疫情期间，劳动合同到期日如何认定？

How to determine the expiration date of employment contract during the prevention and controlling of NCP?

A: 《人力资源社会保障部办公厅关于妥善处理新型冠状病毒感染的肺炎疫情防控期间劳动关系问题的通知》规定：“在劳动者因感染、疑似感染或密切接触新型冠状病毒隔离治疗期间或医学观察期间、政府实施隔离措施或采取其他紧急措施期间劳动合同到期的，劳动合同分别顺延至医学观察期期满、隔离期期满或者政府采取的紧急措施结束”。

According to 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 Controlling of the Novel Coronavirus-infected Pneumonia Epidemic, “Where the employment contract expires when an employee is isolated, observed or taken emergent measures for the reason that he/she is a patient with pneumonia, a suspected patient or in close contact with a person with the novel coronavirus infection, or the employee is implemented other isolation measures or other emergency measures by the governments, such employment contract shall be extended to the expiration of the employee's medical treatment period, medical observation period, isolation period or the end of the emergency measures taken by the government”.

具体情形下，劳动合同到期日应调整为：

To be specific, the adjustment of the expiration date of employment contract shall be as follows in:

1、劳动者被直接采取隔离治疗措施的，劳动合同到期日顺延至“隔离期结束之日”。

Where the employee was isolated for treatment directly, the expiration date of employment contract shall be extended to the last day of isolation.

2、劳动者被采取医学观察措施后未被确诊为新型冠状病毒肺炎患者的，劳动合同到期日顺延至“医学观察期结束之日”。

Where the employee was not diagnosed with NCP after being taken medical observation measures, the expiration date of employment contract shall be extended to the last day of the medical observation.

3、劳动者先被采取医学观察措施，后又被确诊为患者采取隔离治疗措施的，劳动合同到期日顺延至“隔离期结束之日”。

Where the employee had been taken medical observation measures, then was diagnosed with NCP, the expiration date of employment contract shall be extended to the last day of isolation.

4、劳动者未患新型冠状病毒肺炎也未被采取医学观察或隔离治疗措施，只是被当地人民政府限制出行的，劳动合同到期日顺延至“当地人民政府宣布解除禁行措施之日”。

Where the employee was restricted for travel by the local people's government, but has not been infected with NCP or been taken medical observation or isolation measures for treatment, the expiration date of employment contract shall be extended to the last day when the travel restriction is canceled by the local government.

Q20: 用人单位拒绝与曾患传染病的劳动者建立劳动关系是否合法？

Whether the refusing to establish employment relationship with the infected people is legal or not?

A: 《中华人民共和国就业促进法》第三十条规定：“用人单位招用人员，不得以是传染病病原携带者为由拒绝录用。” 《中华人民共和国传染病防治法》第十六条规定：“任何单位和个人不得歧视传染病病人、病原携带者和疑似传染病病人。”

According to article 30 of the Laws of the People's Republic of China on Employment Promotion and Laws of the People's Republic of China on Prevention and Treatment of Infectious Diseases, “In its recruitment, an employer shall not refuse to hire a person under the excuse that he or she is a carrier of infectious disease pathogen”, Article 16 of Laws of the People's Republic of China on Prevention and Treatment of Infectious Diseases “No units or individuals shall discriminate against infectious disease patients, pathogen carriers and suspected infectious disease patients”.

根据国家卫健委发布的2020年第1号公告：“将新型冠状病毒感染的肺炎纳入《中华人民共和国传染病防治法》规定的乙类传染病，并采取甲类传染病的预防、控制措施”。

According to the NO.1 Announcement issued by the National Health Commission of the People’ Republic of China, NCP is the infectious disease under class B as stipulated in Laws of the People's Republic of China on Prevention and Treatment of Infectious Diseases, and prevention and controlling measures equivalent to the infectious diseases under class A shall be applied.

据此，新冠状病毒肺炎属于乙类传染病，用人单位不得对感染或疑似感染新冠状病毒的劳动者实施任何就业歧视，不应以此为由拒绝建立劳动关系。

Therefore, NCP is infectious disease under class B. The employer shall not discriminate against the people infected with or suspected to be infected with NCP, and shall not refuse to establish employment relations with them for the reasons of infectious disease.

Q21: 企业是否有权收集劳动者在疫情期间的出行情况等个人信息？

Whether the enterprise is entitled to collect the information related to travel, infection, etc. of the employees or not during the epidemic prevention?

A: 《中华人民共和国传染病防治法》第十二条规定：在中华人民共和国领域内的一切单位和个人，必须接受疾病预防控制机构、医疗机构有关传染病的调查、检验、采集样本、隔离治疗等预防、控制措施，如实提供有关情况。疾病预防控制机构、医疗机构不得泄露涉及个人隐私的有关信息、资料。据此，如果企业出于防治疫情的目的，有权对劳动者的出行情况和感染情况等信息进行收集或统计。

According to Article 12 of Laws of the People's Republic of China on Prevention and Treatment of Infectious Diseases, “All units and individuals within the territory of the People's Republic of China shall accept the preventive and controlling measures taken by disease prevention and controlling institutions and medical agencies for investigation, testing, collection of samples of infectious diseases and for isolated treatment of such diseases, and they shall provide truthful information about the diseases”. Therefore, the enterprise is entitled to collect the information related to travel, infection, etc. of the employees for the purpose of epidemic prevention and controlling.

根据《网络安全法》第四十二条的规定，企业在收集和使用劳动者个人信息的同时，用人单位还应当对劳动者的个人信息采取必要的保密措施予以保护，避免披露不必要的内容。

According to Article 42 of Cybersecurity Law of the People’s Republic of China, the enterprise shall take technical and other necessary measures to ensure the security of personal information it collects, and to protect such information from disclosure, damage or loss.

Q22: 在疫情防控过程中职工主要可能涉及哪些刑事责任?

What’s the main types of crimes involved by employees during the period of epidemic prevention and controlling?

A: 从《刑法》和《传染病防治法》以及《关于办理妨害预防、控制突发传染病疫情等灾害的刑事案件具体应用法律若干问题的解释》等规定来看，在疫情防控期间，职工主要涉及的几类罪名包括：编造、故意传播虚假恐怖信息罪、以危险方法危害公共安全罪、过失以危险方法危害公共安全罪、煽动分裂国家罪、寻衅滋事罪、侵犯公民个人信息罪、妨害公务罪、诈骗罪等。

According to the Criminal Law, Laws of the People's Republic of China on Prevention and Treatment of Infectious Diseases, and Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on the Specific Application of Laws in Handling Criminal Cases of Impeding the Prevention and Controlling of Sudden Infectious Diseases and Other Disasters, during the period of epidemic prevention and controlling, the main types of crimes involved by employees include: the crime of fabricating, deliberately disseminating false terrorist information, the crime of endangering public security by dangerous means, crime of negligently endangering public security by dangerous means, the crime of inciting to split the country, the crime of provoking trouble, crime of infringing personal information of citizens, crime of obstructing public affairs, crime of cheating etc.

Q23: 在疫情防控过程中有用人单位可能涉及的刑事责任吗?

What’s the main types of crimes involved by enterprises during the period of epidemic prevention and controlling?

A: 从《刑法》和《传染病防治法》以及最高法与最高检发布的《关于办理妨害预防、控制突发传染病疫情等灾害的刑事案件具体应用法律若干问题的解释》等规定来看，用人单位可能触犯生产销售伪劣产品罪、生产销售假药罪、生产销售劣药罪、生产、销售不符合标准的医用器材罪、非法经营罪等。

According to the Criminal Law, Laws of the People's Republic of China on Prevention and Treatment of Infectious Diseases, and Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on the Specific Application of Laws in Handling Criminal Cases of Impeding the Prevention and Controlling of Sudden Infectious Diseases and Other Disasters, during the period of epidemic prevention and controlling, the main types of crimes involved by employers include: the crime of producing and selling fake and inferior products, the crime of producing and selling fake drugs, the crime of producing and selling inferior drugs, the crime of producing and selling unqualified medical equipment, the crime of illegal operation, and etc.