With the Chinese New Year holiday having been extended and a delay to the resumption of work in many Chinese provinces due to the coronavirus, a lot of uncertainty naturally remains around China employees’ rights, overtime pay and annual leave. Vivian Mao, from Dezan Shira & Associates, has looked at some of the guidelines released by Beijing and Shanghai* in recent days.
*The assumption is that other Chinese cities and provinces will follow their lead, but it aways pays to check the latest advice coming from the employment authority in your city.
Photo: Tim Mossholder
Although China’s State Council announced the extension of the Spring Festival Holiday to February 2, many cities across China are advising businesses to stay closed until February 10 or even February 14 as local governments seek to restrict public movement in the hope of quelling the spread of the deadly coronavirus. The moves have, however, left many China employees in the dark about whether this extra period is counted as statutory holiday or annual leave and whether they should be paid overtime if they are asked to work during this period.
According to Vivian Mao, employees who were forced to work during the extended holiday period (to February 2) should be provided with days off in lieu or given remuneration in accordance to the related policies. While it has not been explicitly stated what these “related policies” are, the only other time a public holiday has been extended in China, when the country celebrated the 70th anniversary of the end of World War II in September 2015, those having to work were paid overtime of 200 percent of their standard salary (or given time off in lieu). It can therefore be assumed that the same rules apply to this latest extended holiday period, whether the employee is working from home or not.
However, these same rules do not necessarily apply to the delay of work resumption (typically from February 3 to February 9) announced by some cities and provinces. Those working during that time, whether from home or not, are not entitled to any rest in lieu or overtime payment. Provinces and cities that have called for a delay in the resumption of work are yet to specify whether employees not working during this time will see the days deducted from their annual leave allowance. According to Article 5 of the Announcement of the State Council on the Regulations of Paid Annual Leave of Employees, enterprises have autonomy to arrange annual leave as they see fit, although employee preference should be taken into account.
What this essentially means for you as an employee in China is that you should be able to choose either to work from home during this period (if conceivable) at your standard working rate or to take this week as annual leave. If your job is not the kind of job you can do from home and your workplace is not open, this potentially gives you bargaining power with your employer. As you cannot work even if you wanted to, the days should arguably not be deducted from your annual leave. Ultimately, however, as the official guidelines are unclear, your success in this debate will depend on how stubborn you are and how generous your employer is feeling.
The Beijing Municipal Human Resources and Social Security Bureau has also issued guidelines for businesses with employers directly affected by the coronavirus outbreak. A notice on January 23 states that those infected with the virus should be given sick leave in accordance with their contract, with payment no lower than 80 percent of the minimum salary for Beijing, for the entirety of the recovery period. Those unable to attend work because of a quarantine, as in Wuhan, for example, should be paid their full salaries. However, employers are entitled to count non-work days as annual leave for anyone who fails to return to Beijing (after the delay to the resumption of work period) because of the epidemic. Those absent from work for a prolonged period can arrange a furlough by consensus and receive a basic allowance no lower than 70 percent of Beijing’s minimum salary.
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Keywords: China employee
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