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。

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?

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?

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”.

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.

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.  

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”.

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”.

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?

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?

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”。

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? 

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.