The Chinese New Year public holidays will come soon. According to Chinese tradition, this is the time for family re-union. During the holidays, many people usually travel back to their hometowns or visit family members at other locations. Foreign employees also take such time to go sightseeing abroad. Unfortunately, the COVID-19 pandemic broke out again in some locations in China. In order to control the spread of the virus and reduce infection risks, many Chinese local governments (including Shanghai and Beijing) already issued official notices to encourage people not to travel but stay in the cities where they work during the holidays.
Legally speaking, the Chinese New Year holiday is a public holiday. Until now, no local governments issued official travel banning polices yet. Therefore, employees have the right to decide where to spend their holidays. But taking into consideration of what has happened at the same time last year, i.e. how difficult it was for employees going to other locations to come back to work, employers may need to consider to do some preparations in advance in order to reduce the potential risks of employees’ infection by the virus and/or being unable to duly coming back to work after the holiday. What are the preparations employers can make for the holidays?
1. Requiring employees to report their travel plans
Legally speaking, employees are not obliged to report to the employers about their travel plans for the holidays. But in the current special situation, the traveling information of the employees are directly related to the performance of employment contracts, i.e. whether the employees are able to duly come back to work after the holiday. Therefore, if required, employees are obliged to provide their employers with their traveling information, which can include the time schedule, destination, duration, etc. Employers may ask the employees to duly update their travel plans, if there is any change during the holidays so that the companies will clearly know the locations of the employees and can judge whether the employees will be able to duly come back to work or not.
2. Reminding employees of potential traveling risks
With the development of the pandemic situation in China, many locations issued epidemic prevention and control measures which may differ from one location to the other and are changed from time to time. In general, people traveling domestically to the countryside may be required to provide a nucleic acid test (“NAT”) certificate issued within 7 days. If any person passes through or travels from high-risk areas, he or she shall be subject to 14 days’ centralized quarantine at a designated place and shall accept NAT for 2 times. Any person who passes through or travels from medium-risk areas shall be subject to 14 days’ quarantine at home and shall accept NAT for 2 times. Only after the completion of 14 days’ isolation and getting a negative NAT result for 2 times, such person can be released from quarantine measures.
As for traveling abroad, since the September of 2020, the Chinese government has been allowing foreigners’ holding valid residence permits for work purpose or private purpose to enter into China, but other foreigners, if going to China, must obtain a special visa by holding a PU letter. Therefore, currently if any foreigner wants to travel out of China, they will be subject to the risk of not being able to come back to China. Further, any traveler from abroad will be subject to at least 14 days’ centralized quarantine and shall accept NAT for at least 2 times. In some locations, the quarantine period was already extended for another 7 days or even 14 days.
Employers may wish to remind their employees who want to travel domestically or internationally of these potential risks and require these employees to consider, if the traveling is really necessary and to make preparation in advance so that they are able to come back to work and in time.
3. Notifying employees about the legal consequences in case the employees are not able to duly come back to work
During the period when the COVID-19 broke out in early 2020, the Chinese government at both the State and local levels issued many labor law policies relating to the pandemic. According to these polices which are still valid until now, employers are obliged to pay full salaries to employees who are subject to quarantine. However, the employers may arrange these employees to work from home or take annual leave during the quarantine period. If an employee can neither work from home nor come back to work after taking off various leaves, the employer may temporally suspend the employee’s work and pay only the living allowance according to the law. However, the current situation is different. Before traveling, the employees now already know or should have known the potential traveling risks, i.e. that the employee might be subject to quarantine and cannot duly come back to work due to COVID-19. In such case, if the employee insists on traveling, legally speaking, the employer is entitled to ask the employee to take unpaid leave, if the employee can neither work from home nor come back to work after using up all annual leave. For reasons of safety, the employer may arrange employees who are going to travel to sign a letter to expressly agree on such arrangement in advance.
4. Asking the employees to provide health records or NAT certificates before coming back to work
Under PRC labor law, employers are obliged to take all necessary measures to provide a safe and healthy working environment for their employees. One of the most effective measures is to ensure that the employees are healthy when they come back to work after the public holidays. For this purpose, employers may check the health codes and itinerary codes of the employees in their mobiles. If any employee passed through or came from high risk or middle risk areas, the employer may ask the employee either not to enter into the workplace or take NAT before entering the workplace.
Please note that in order to implement the above measures, employers may wish to notify their employees in writing before the public holidays so that the employees are fully aware of the requirements of the company and the consequences which the employees must bear, if they decide to travel during the public holidays. Especially if any employer decides to arrange the employees to take unpaid leave in case the employees are not able to duly come back to work, in order to avoid potential disputes, the employer may wish to ask employees who are going to travel to sign a consent letter in advance.