We are seeing a growing number of labor and employment inquiries from both employers and foreign employees, especially foreign employees stuck outside China due to Covid-19. This article offers some analysis from our lawyers on some of the more common questions we have received regarding these labor disputes and administrative issues.
Part I The Employment Relationship
1. My flight was cancelled, and I can’t come back to China. Can my employer stop paying my salary?
According to the (Ren She [2020] No.5) issued on January 24, “If the employee is unable to provide work normally as a result of government quarantine measures or other emergency measures, the employer shall pay the remuneration during such period.” We think that these border restrictions amount to “other emergency measures.” So, in principle, the employer should pay remuneration as normal.
That said, a separate document from the Ministry of Human Resource and Social Security, , encourages that employers should:
offer to use up annual leave and other paid leave;
negotiate an acceptable delay in payment with employees.
So, this means salary during a period of non-work should be worked out through applying paid leave, then negotiation, and finally unpaid leave.
Also note that if work is provided remotely (such as the online teaching), there are no legal grounds for employers to stop paying. Employees are entitled to the agreed-upon salary for work performed.
2. Can my employer fire me for absenteeism, even though I’m stuck outside China through no fault of my own?
Currently, it is impossible for most foreign employees to return to China. Under the circumstances, we think foreign employees should be considered as “unable to return to work in time due to the epidemic,” as opposed to absent, unless the employer has sufficient evidence to prove that the employee simply refuses to return for personal reasons. Without it, any such unilateral termination would constitute a wrongful termination. Employees would then be entitled to claim for statutory compensation under the relevant provisions of Chinese labor laws.
To avoid unnecessary disputes on this front, one thing we suggest is that employers promptly request related documents (such as ticket purchase voucher, flight cancellation notice, etc.) from employees, and that employees promptly submit them, as this is the easiest way to determine whether there are genuine impediments to return.
Also, the states that the principle is to stabilize employment relationships when disputes arise from failure to return to work. In other words, if there is any possibility to continue the employment relationship, this should be negotiated, with termination being the least preferred outcome.
3. What about my housing situation?
There are two typical ways of dealing with housing for foreign employees: 1) The employer signs a rental agreement with a landlord for providing housing to foreign employees, and 2) the employee signs a rental agreement with their landlord, and the employer pays the employee a “housing allowance” or reimbursement for all or part of the rental fee. These produce different legal effects.
In the first case, the employer and the landlord are parties to the lease. Therefore, the liability for breach of contract arising from unpaid rent shall be borne by the employer, not the foreign employee. However, please note that the landlord would have the right to refuse employees entry to their house after termination of the lease contract. So, if something like this happens, we suggest that employees actively communicate with the landlord to arrange retrieval of their belongings as soon as possible.
In the second case, the foreign employee and the landlord are parties to the lease. If the employer simply refuses to pay the housing allowance or reimbursement, the foreign employee can claim against the employer based on employment contract. However, the employee would still be responsible for paying the rent according to the lease. If something like this happens, the employee should keep proof of payment to strengthen a future claim against the employer.
Part II Administrative Issues
Some foreign employees are currently overseas due to the epidemic and face expiration of their visas or residence permits. We summarize below a few key points for your reference:
1. Work Visa:
If your initial work visa is about to expire, you should simply make sure to reapply for a new one.
2. Work Permit:
If you need to renew your work permit, your employer should apply for renewal no less than 30 days before the expiration. With that in mind, foreign employees need to keep communicating with their employers, and complete any related tasks they are responsible for, in order to avoid unnecessary complications.
Please note: for class B and C work permits, employers should be able to complete the entire renewal process online, eliminating the need to verify paper documents on site.
3. Residence Permit:
Foreign employees need to apply for renewal themselves. If you are stuck overseas, unfortunately, you cannot renew your residence permit. If your residence permit is expired during this period, a new residence permit shall be applied after your return to China. If you are in China and want to renew your residence permit, you can make online appointment first through https://gaj.sh.gov.cn/crj/gryw/wgrwssq, then bring all necessary documents to Exit-Entry Administration Bureau at the appointed date and time.
Please feel free to contact DaWo Law Firm if you have questions about any of the information in this article.
For private consultation, please contact us
by phone +86.21.6288.8682,
or by mail info@dawo-lf.com
