2019年底开始的新冠肺炎疫情使不少企业的生产经营以及业务机会受到不同程度的不利影响。企业的持续性发展离不开员工的付出；但“皮之不存，毛将焉附”，企业如果活不下去了，员工的劳动关系将不得不面临解除或终止境地。下文简析企业在后疫情时期即疫情得到控制、生产经营逐步恢复过程中，如何在劳动用工方面合规“减负”。总体来说，企业可与员工协商“共克时艰”, 争取企业与员工在复工复产中获得“双赢”。
一、薪资调整
根据《劳动合同法》第35条，用人单位与劳动者协商一致，可以以书面形式变更劳动合同约定的内容。
根据人社部办公厅《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》（以下简称《人社部通知》），“企业因受疫情影响导致生产经营困难的，可以通过与职工协商一致采取调整薪酬、轮岗轮休、缩短工时等方式稳定工作岗位，尽量不裁员或者少裁员”。
因疫情受到不利影响的企业可考虑不涨薪。劳动合同或内部薪酬制度明确规定每年涨薪的（根据作者经验，少有企业设定该等固定条款），可与员工协商不涨薪，或根据《劳动合同法》第4条通过民主程序[1]决定不涨薪。如果劳动合同或内部薪酬制度中并未规定企业每年给予员工涨薪，或者写清楚用人单位有权自主决定是否给予涨薪的，一般来说无需与员工协商一致，企业可自主决定不涨薪。这同样适用于由企业自主决定发放的额外福利。
企业因疫情影响生产经营困难的，根据企业的具体情况，可考虑与员工协商一致或通过民主程序决定在短期内降薪。实际上，受此次疫情影响，市场上已有一些公司的管理层人员或全员集体降薪一定比例。但降薪毕竟对于员工来说是极其敏感的，企业在作出降薪决策前需要综合衡量企业受疫情影响的程度，是否有降薪的合理理由，确定降薪人员范围和公平合理的降薪幅度、合适的降薪期限（如，不超过疫情期间）。不公平合理的降薪决策即便经过《劳动合同法》第4条规定的民主程序，也可能被法院认定无效。《上海市高级人民法院上海市人力资源和社会保障局关于疫情影响下劳动争议案件处理相关指导的意见》指出，对于用人单位按照法定程序通过与职代会、工会、职工代表进行民主协商的方式对调岗降薪等事项达成一致意见，且该意见公平合理、仅适用于疫情期间的，可以作为裁审依据。因此，企业需结合前述内容衡量民主协商意见是否公平合理，确定公平合理的降薪幅度和降薪期间。当然，作为临时性措施，企业也可考虑在企业经营状况转好后补回降薪。
如适用，企业亦可考虑调整工资结构，在不涨薪或降低现金支付的情况下，将有关员工纳入股权激励计划或其他形式的激励计划中。如此，可在一定时期降低直接用工成本，同时激发员工与企业共同抗击企业自身面临的“寒冬”的动力。
二、无薪假、缩短工时
受疫情影响，业务需求量减少、经营困难的企业，可以考虑安排员工优先休掉法定带薪年休假、企业福利假后，通过与员工协商休无薪假、缩短工时，暂时降低用工成本。员工休无薪假期间，不影响企业按规定缴纳社保等义务。
需注意，企业安排员工休带薪年休假或企业福利假，无需取得员工同意。根据《职工带薪年休假条例》，企业根据生产、工作的具体情况，考虑职工本人意愿，可统筹安排职工休年休假。该条例并未要求企业安排休带薪年假必须取得员工同意。同理，企业可根据经营情况安排员工休企业福利假。
三、综合计算工时工作制
企业还可根据其具体情况，根据法律法规规定向主管劳动行政部门申请部分岗位适用综合工时制，业务需求淡季中员工工作时间短，业务需求旺季中员工工作时间加长。
四、灵活用工
- 非全日制用工
某些企业，根据其业务特点，如适用，可考虑招用非全日制用工员工。非全日用工机制下，按工作小时计算薪酬，企业不用支付社保用工成本（需要为这些员工缴纳工伤保险[2]）。并且可根据企业经营情况随时通知终止用工，终止用工时无需支付经济补偿。
要注意的是，就非全日制用工，员工在同一用人单位一般平均每日工作时间不超过4小时，每周工作时间累计不超过24小时；不得约定试用期；薪酬待遇方面，小时计酬标准不得低于用人单位所在地人民政府规定的当年度适用的最低小时工资标准；薪酬支付周期方面，最长不得超过十五日。 - 服务外包
企业的辅助性业务或项目性的业务，可以通过外包方式，委托其他企业完成，以避免长期雇佣员工的成本（如薪金待遇及社会保险成本、解除或终止聘用的经济补偿金等）。
关于将企业的部分业务外包给第三方，企业需要注意避免或降低与第三方委派人员构成事实劳动关系的法律风险。判断是否构成劳动关系的关键要件，包括第三方委派人员从事的业务属于企业的主营业务还是辅助性业务，委派人员是否受到企业的内部规章制度的制约、受企业管理等。因此，企业应避免直接要求第三方指派的人员遵守其全部内部规章制度，直接指挥指派人员工作，对其进行管理。
五、停工停产
企业可在一定期间停工停产。原劳动和社会保障部发布的《工资支付暂行规定》及以上《人社部通知》均规定了停工停产情形下员工的工资支付问题。非因劳动者原因造成企业停工停产的，在第一个工资支付周期按照劳动合同约定标准支付正常工资，即便员工并未提供劳动；超过一个工资支付周期的，若员工提供了正常劳动，企业应支付不低于当地最低工资标准的工资。根据前述《人社部通知》，员工没有提供正常劳动的，企业应发放生活费，生活费标准按各省、自治区、直辖市规定的办法执行。以上海市为例，《上海市企业工资支付办法》规定停工停产超过一个工资支付周期的，企业可根据员工提供的劳动与员工约定工资标准，但不得低于本市规定的最低工资标准；根据前述提及的《上海市高级人民法院上海市人力资源和社会保障局关于疫情影响下劳动争议案件处理相关指导的意见》，企业停工停产超过一个工资支付周期，员工未提供劳动的，企业与劳动者协商支付一定的生活费。
六、解除
当某些企业不得不通过裁员以缓解压力求生存的时候，应注意合规操作。疫情之下，一些企业为了节约成本，有的裁掉当年业务经营不甚需要的“冗余”人员。本文作者疫情期间接到不少劳动者咨询，细究之下，并不觉得企业有足够合法理由单方解除员工。
1. 协商解除
根据《劳动合同法》第36条，用人单位与劳动者协商一致，可以解除劳动合同。因此，如果企业经营困难，不得不裁减人员（包括符合《劳动合同法》第41条经济性裁员的人数标准和法定情形的），与员工签署协商解除协议，也可以依法解除劳动关系。
基于平等协商达成解除协议，从防范劳动争议及劳动违规风险来说，当然是解除劳动关系最为安全的一种方式。通常在企业单方解除存在风险时或涉及企业解散关闭等情形时，为了避免出现劳动争议影响企业清算进程，我们会建议企业尝试协商解除。（实际上作者之前处理过的外资公司提前终止经营案件中，审批机关批准提前终止经营前，要求企业提供与员工签署的解散安置协议即解除协议。[3] ） - 经济性裁员
《劳动合同法》第41条规定了经济性裁员。如符合该法第41条规定情形之一，比如：（a）企业按照《企业破产法》的规定进行重整，（b）企业发生生产经营困难，（c）企业转产、重大技术革新或者经营方式调整，经变更劳动合同后，仍需裁减人员的，(d)其他因劳动合同订立时所依据的客观经济情况发生重大变化，致使劳动合同无法履行的，企业可以实施经济性裁员。企业实施经济性裁员须评估自身是否符合这些法定情形之一，比如援引企业发生生产经营困难这一法定理由，通常需要看企业近几期财务报表是否显示企业财务状况处于亏损状态。
以上第41条的经济性裁员人数标准为裁减20名以上员工或裁减总人数虽然不足20名，但裁减人数占企业员工总数的10%以上。如果企业因为以上法定原因之一，需要裁减的人数达到该标准的，必须按照第41条的规定履行提前向工会或全体职工说明情况，听取工会或职工的意见后，将裁减人员方案向劳动行政部门报告，方可实施人员裁减。
用人单位必须完成《劳动合同法》第41条规定的程序，包括报告程序，方能执行经济性裁员。并且，经济性裁员的裁减方案向劳动行政部门报告的性质是什么，可能在不同地方操作有异。尽管作者认为地方劳动行政部门对企业人员裁减方案进行批准的合法性值得商榷[4]，但的确在某些地区，主管劳动行政部门对报告提交的裁员方案进行“批准”。如果地方劳动行政部门认为企业不符合经济性裁员情形的，或者认为提交材料不齐全的，其不予确认企业完成报告程序（比如不出具回执），企业自行执行经济性裁员，可能面临劳动争议法律风险。因此，用人单位确需实施经济性裁员的，宜核实当地是否有经济性裁员的地方性规定、明确当地劳动行政部门的具体要求，然后衡量完成有关程序的可行性并确定裁员方案。
另，拟根据第41条实施经济性裁员，还需留意优先留用员工及6个月内重新招聘时同等条件下优先录用的法律要求。这也关系到经济性裁员方案的制定。 - 基于客观情况发生重大变化单方解除
根据《劳动合同法》第40条第3款，劳动合同订立时所依据的客观情况发生重大变化，致使劳动合同无法履行，经用人单位与劳动者协商，未能就变更劳动合同内容达成协议的，用人单位提前三十日以书面形式通知劳动者本人或者额外支付劳动者一个月工资后，可以单方解除劳动合同。
根据原劳动部办公厅印发的《关于＜劳动法＞若干条文的说明》（劳办发[1994]289号），客观情况发生重大变化通常指发生不可抗力或出现致使劳动合同全部或部分条款无法履行的其他情况，如企业迁移（实践中需要判断是否涉及较远距离迁址，比如跨省与否等）、被兼并、企业资产转移等。
此次疫情本身是否构成劳动用工“客观情况”发生重大变化，不可一概而论，尚需结合个案分析。如果因疫情影响导致企业非临时性的组织架构调整、撤销某些部门，经营规模缩减等，通常构成客观情况发生重大变化。更重要的是，企业需要判断因为这些重大变化，企业和员工的劳动合同是否到了无法履行的地步。如果客观上尚能履行，企业单方解除的合法性存疑。并且，单方解除员工前，程序方面，企业需要考虑是否有继续聘用员工的替代方案，并提供方案与员工协商变更合同事宜。 - 禁止单方解除的情形
符合《劳动合同法》第42条情形时，用人单位不得根据《劳动合同法》40条及第41条的规定单方解除员工。第42条规定的情形包括，从事接触职业病危害作业的员工尚未进行离岗前职业健康检查，或疑似职业病病人在诊断或医学观察期，员工患职业病或因工负伤并被确认丧失或部分丧失劳动能力，患病或非因工负伤处于规定的医疗期内，女职工处于三期等以及法律行政法规规定的其他情形。
根据以上提及的《人社部通知》的规定，对新型冠状病毒感染的肺炎患者、疑似病人、密切接触者在其隔离治疗期间或医学观察期间以及因政府实施隔离措施或采取其他紧急措施导致不能提供正常劳动的企业职工，企业应当支付职工在此期间的工作报酬，并不得依据《劳动合同法》第40条、41条单方解除与员工的劳动合同。并且，在此期间，劳动合同到期的，分别顺延至员工医疗期期满、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。
疫情期间，国家层面及地方层面已经陆续出台并可能继续出台关于稳定劳动关系以及解决劳动争议的规定。实践中，企业需结合所在地区最佳实践操作经验和出台的新规定，权衡分析后作出相应安排。
注释：
[1]根据《劳动合同法》第4条，用人单位在制定、修改或者决定有关劳动报酬、工作时间、休息休假等直接涉及劳动者切身利益的规章制度或者重大事项时，应当经职工代表大会或者全体职工讨论，提出方案和意见，与工会或者职工代表平等协商确定。
[2] 以上海市为例，《上海市劳动合同条例》第51条规定，用人单位使用非全日制劳动者，在劳动过程中造成劳动者工伤或者患职业病的，应当承担相应责任。并且，《工伤保险条例》第2条第1款规定，境内的企业、事业单位、社会团体、民办非企业单位、基金会、律师事务所、会计师事务所等组织和有雇工的个体工商户应当依照条例规定参加工伤保险，为本单位全部职工或者雇工缴纳工伤保险费。
[3] 现行外商投资体制下，负面清单以外的外资企业提前终止经营是否还受制于该等要求，另当别论。
[4] 《劳动合同法》并未明确规定经济性裁员需要经过地方劳动行政部门的批准。
The outbreak of COVID-19 as of end of 2019 has brought adverse impacts on many enterprises’ production and operations as well as business opportunities to different extents. The sustainable development of enterprises is inseparable from the efforts of employees; however, as indicated by the Chinese proverb "no skin, no hair”, if the enterprise cannot survive the difficult times, the employee's employment relationship will have to be terminated. The author hereinafter briefly elaborate how enterprises could take compliant measures to reduce the employment costs during the post COVID-19 period, i.e., the period during which the epidemic has been controlled and production and operation of enterprises have been gradually restored. In general, enterprises may negotiate with employees and work together to get through the difficult period and try to achieve “win-win” result with employees when gradually restoring the normal production and operations.
Salary Adjustment
According to Article 35 of the Labour Contract Law, the employer and the employee may agree to amend the contents of the employment contract in written form.
The Notice on Properly Handling Employment Relations During the Prevention and Control of COVID-19 issued by the General Office of the Ministry of Human Resources and Social Security (hereinafter referred to as “MOHRSS Notice ”) specifies “in case that an enterprise suffers from difficulties in production and operation due to the epidemic, it may take measures such as salary adjustment, rotation and work shifts as well as shortening working hours through consultation with employees so as to stabilize the job positions and try to not terminate employees or reduce the number of layoffs.”
First, enterprises adversely impacted by the epidemic may decide not to increase salary of the employees. Where the employment contract or internal remuneration policy explicitly specifies that the salary increase is granted on yearly basis (which may not be an usual case according to the author’s experience), the enterprises may negotiate with employees on not granting the salary increase or make a decision on this by going through the democratic procedure[1] according to Article 4 of the Labour Contract Law. Where the employment contract or internal remuneration policy has no such provisions, or alternatively it specifies that the employer has its sole discretion to determine whether to increase an employee’s salary, it is generally subject to the employer whether to grant salary increase for the employees. The same applies to those additional benefits subject to the sole discretion by the enterprises.
Enterprises having difficulties in production and operation may also consider negotiating and agreeing with employees on reducing the employees’ salary for a short period, and alternatively the enterprises may go through the democratic procedure mentioned above to reduce the salaries. In fact, there has already been cases of management staff or all the employees of some enterprises reducing their salary by a certain percentage. However, reducing salary is indeed a sensitive matter for employees. Before determining the salary reduction, the enterprises should assess the extent of adverse impact on their production and operation due to the epidemic, whether they have the justifiable reason to reduce the salary and determine the scope of staff for salary reduction, the reasonable and fair range of salary reduction and a fair time period for the salary reduction (for example, generally it shall not be longer than the duration of the epidemic). An unfair and unreasonable salary reduction decision may be regarded as invalid by the court even if the form of going through democratic procedure has been fulfilled. According to the Opinions on Guidance Relating to Dealing With Employment Disputes Under Epidemic Impacts by Shanghai High People’s Court and Shanghai Human Resources and Social Security Bureau, if the enterprises make decisions on position adjustment and salary reduction etc through democratic negotiations with employee representative congress, trade union or employee representatives according to the democratic procedure, such agreements can be referred to as a basis for the court to issue the judgment provided that comments on such democratic negotiation obtained from the foregoing employee representatives etc are fair and reasonable, and such decisions are only applicable to the duration of the epidemic. Consequently, enterprises must evaluate if such comments obtained are fair and reasonable and determine a fair and reasonable range of salary reduction and time period accordingly. As a provisional measure, the enterprises may, of course, also consider compensating such salary reduction when they are back in sound conditions.
If applicable, enterprises may also consider adjusting the salary structure to introduce share incentive plans or other incentive plans against the background of not increasing the salary or reducing the monetary remuneration. This may reduce the employment costs for a certain period while it could motivate employees to work together with the enterprises to jointly combat against the "cold winter" faced by the enterprises.
Unpaid Vacations and Shortening Working Hours
Affected by the epidemic, enterprises with reduced business demand and suffering difficulties in production and operation may consider arranging for employees to take their entitled statutory paid annual leave firstly and the additional welfare leave granted to employees, and negotiate with employees for taking unpaid vacations and shortening working hours so as to temporarily reduce employment costs. During such vacations, enterprises shall still contribute social insurance premiums for employees according to the laws and regulations.
Please note that enterprises may arrange for employees to take their entitled statutory paid vacation or the additional welfare vacations without the consent of employees. According to the Regulation on Paid Annual Leave for Employees, enterprises may, according to their production and operation situations, arrange for employees to take the paid annual leave by considering the intent of employees. Such regulation does not require consent of employees in this regard. Similarly, enterprises may instruct employees to take those welfare vacations.
Comprehensively Calculated Working Hours System
According to their specific situations, enterprises may also apply to the competent labour authorities for application of the comprehensively calculated working hours system for specific positions according to the laws and regulations, under which relevant employees are instructed to work for shorter hours during the off-peak season and for longer working hours during the peak season.
Flexible Staffing - Part-time Work
Certain enterprises may consider recruiting part-time workers, if that is applicable according to the characteristics of their business operation. For part-time workers, the remuneration is accrued and calculated based on the working hours and the social insurance premiums costs are saved by enterprises (except for contribution of work-related injury insurance premiums[2]). Moreover, the part-time employment relationship may be terminated, without payment of statutory severance, at any time by notice according to operational needs of enterprises.
It shall be noted that under the part-time working arrangement, the part-time worker’s average daily working hours for the same employer generally shall not exceed 4 hours per day / 24 hours per week; no probation period shall be designated for part-time worker; the hourly rate of remuneration shall not be lower than the local minimum hourly rate for the respective year; the term for payroll handling shall not exceed 15 days.
2. Outsourcing
Part of the businesses of an enterprise, especially those auxiliary business or project-based business, may be outsourced to third parties so as to avoid the cost of long-term employment (including remunerations, social insurance premiums, statutory severance for termination of employment).
In terms of outsourcing certain business of the enterprise to third parties, the enterprise needs to avoid or mitigate risks of constituting factual employment relationship with the staff / consultants instructed by the third party to undertake the tasks. Key elements for determining whether factual employment relationship exists include if the outsourced business forms major business or auxiliary business of the enterprise, whether the staff or consultants of third parties are subject to the internal rules and regulations of the enterprise as well as subject to its management, and so on. It is, therefore, not recommended for enterprises to keep the staff / consultants of third parties bound by its internal rules and regulations and to directly instruct / conduct management over such staff / consultant of third parties.
Production / Operation Suspension
Enterprises may suspend the production and operation for a certain period. Both the Interim Regulations on Salary Payment by the previous Ministry of Labour and Social Security and the above-mentioned MOHRSS Notice provide for salary payment provisions on suspension of production and operation. Where the production and operation suspension is not caused by the employees, the normal salary shall be paid by the employer to the employees for the first payroll period; for the subsequent payroll period, however, the employer shall still pay salary which is not less than the local minimum salary if the employees work for the employer as normal. According to the MOHRSS Notice, where the employees do not provide service for the employer as usual, the employer must pay living costs to the employees, the amount of which shall be subject to measures (to be) formulated by provincial level governments. Taking Shanghai as an example, according to the Measures on Salary Payment by Enterprises in Shanghai, the enterprises may agree with the employees who provide labour on salaries standards starting from the second payroll period, which shall not be less than local minimum salary. According to the above-mentioned Opinions on Guidance Relating to Dealing With Employment Disputes Under Epidemic Impacts by Shanghai High People’s Court and Shanghai Human Resources and Social Security Bureau, where the suspension lasts for longer than one payroll period, during which the employees provide labour for the employer, the enterprises may pay salaries as agreed with employees based on the amount of workload offered while paying certain living costs where employees do not work during the suspension.
Termination
When certain enterprises have to dismiss employees in order to survive, enterprises shall follow a compliant approach to implement the dismissal. During the epidemic period, some enterprises dismissed employees whose services were not necessarily required or “redundant”. The author received plenty of inquiries from employees during the epidemic and consider not all these employers concerned provided justifiable reasons for the unilateral dismissal of employees. - Mutual Termination
According to Article 36 of the Labour Contract Law, the employer and the employee can terminate the employment contract by mutual agreement. Therefore, for those enterprises having difficulties in the production and operation and having to implement dismissal of employees (including mass dismissal of employees which fall within category of dismissal under Article 41 of the Labour Contract Law), it is allowed to legally terminate employees by reaching mutual agreement with the employees.
From perspective of preventing risks of labour disputes and noncompliance, it is the safest approach to terminate employees by mutual agreement based on an equal negotiation basis. We usually recommend clients to try the approach of termination by mutual agreement, if the reasons for unilateral dismissal are not solid. The same applies in case of company closure/liquidation, as occurrence of labour disputes filed with the court, if any, will impact the progressing of liquidation process. (In fact, the author has the experience of being required to submit termination/settlement agreements signed by employees before the approval authority approves the early dissolution of the foreign invested company prior to expiration of its operation term.[3]) - Mass Dismissal
Article 41 of the Labour Contract Law provides for mass dismissal. If the employment contract is not possible to be performed due to one of the statutory situations stipulated in Article 41, include (a) the enterprise is reorganized in accordance with the provisions of the Enterprise Bankruptcy Law, (b) the enterprise encounters difficulties in production and operation, (c) the enterprise adopts production conversion, introduces major technological innovation or adjust business operation method, under which it still has to implement reduction of redundancy after amending the employment contract, (d) other significant economic changes in the objective economic basis relied upon at the time of concluding the employment contract, which renders the contract impossible to be performed, the enterprise may implement mass dismissal.
The number thresholds for implementing the mass dismissal as stipulated in above Article 41 shall be 20 or more, or alternatively where the total number of layoffs is less than 20, but it accounts for 10% or more of the total headcount of the enterprise. If the enterprise contemplates to unilaterally implement mass dismissal which meet the foregoing number thresholds due to one of the above statutory situations, it must go through statutory procedures in accordance with the provisions of Article 41, including explaining the situation to the union or all employees in advance, listening to the comments of the union or employees, and then submitting the redundancy plan and reporting to the local competent labour authorities before it implements the mass dismissal.
Employers must go through the procedures specified in Article 41 of the Labour Contract Law, including reporting to the local labour authorities before implementing the mass dismissal. Moreover, the nature of reporting and submission of the redundancy plan under Article 41 to the local competent labour authorities may be treated differently from place to place. Although the author doubts the legality of local labour authorities approving redundancy plan for mass dismissal under Article 41[4], practically certain local labour authorities factually adopt “approval” approach. If certain local competent authorities consider that the employer does not satisfy the conditions for implementing mass dismissal under Article 41, or alternatively consider the materials submitted are not complete, they will not confirm the reporting/submission procedures have been completed, i.e., not issuing the receipt, the employer which implements the mass dismissal without obtaining such receipt will probably face risks of being regarded illegally implementing mass dismissal in case of labour disputes. Having said the foregoing, employers who have to implement mass dismissal according to Article 41 are recommended to check local regulations on mass dismissal and ascertain the specific requirements set by local labour authorities before assessing the feasibility of completing the processes and determining the redundancy plan.
In addition, for mass dismissal under Article 41, attention should also be drawn to keeping certain employees and re-hiring employees within 6 months on equal conditions as required by Article 40. This is relevant for preparing the mass dismissal plan.
3. Unilateral Dismissal under Significant Change in Objective Circumstances
According to Sub-clause 3 of Article 40 of the Labour Contract Law, if there is a significant change in the objective circumstances relied upon at the time of conclusion of the employment contract which renders it impossible to perform the contract and, after consultations, the employer and the employee fail to reach an agreement on amending the contents of the contract, the employer may unilaterally terminate the contract with one month’s prior written notice or payment of one additional monthly salary in lieu of notice.
According to the Explanation on Several Clauses of the PRC Labour Law issued by the General Office of the Ministry of Labour (Lao Ban Fa [1994] No. 289), significant changes in the objective circumstances usually refer to force majeure or other circumstances that render all or part of the terms and conditions of the employment contract unfulfillable, such as enterprise relocation (in practice, it is necessary to assess if the new work location is distant or not), merger, and enterprise asset transfer.
Whether the epidemic itself constitutes significant change of the objective circumstances in the employment area, there is no uniform answer to this question, and it shall be assessed on a case-by-case basis. If the epidemic results in non-temporary organizational structure adjustment, cancellation of departments, downsizing the operation scale, etc, in general it shall be regarded as constituting significant change in the objective circumstances. More importantly, enterprises shall consider if the employment contracts for certain employees are not possible to be performed due to such changes. If it is still possible to perform the contract, the legality of unilateral dismissal will probably be challenged. Further, from perspective of the dismissal procedure, enterprises have to consider if there are any alternative plans for continuing employment and negotiate such alternative plans with employees on amending the employment contract before implementing unilateral dismissal. - Situations For Protection from Unilateral Dismissal
Employers shall not implement unilateral dismissal of employees according to Article 40 and Article 41 of the Labour Contract Law under any of the circumstances set out in Article 42 of the Labour Contract Law: (a) the employee is engaged in operations exposing to hazards of occupational disease and has not undergone a pre-departure occupational health examination, or is suspected of having contracted an occupational disease and is being diagnosed or under medical observation; (b) the employee has been identified as totally or partially incapable to work due to an occupational disease contracted or a work-related injury suffered during his/her employment with the employer; (c) the employee has contracted an illness or suffered a non-work related injury, and is still during the prescribed medical treatment period; (d) the employee is a female employee during her pregnancy, confinement or nursing period; (e) the employee has been working for the employer consecutively for no less than 15 years and is less than 5 years to reach his/her retirement age; or (f) finds himself/herself into other circumstances stipulated in laws or administrative regulations.
According to the above-mentioned MOHRSS Notice, for patients with pneumonia, patients suspected of infecting the novel coronavirus, and close contacts of novel coronavirus infection during their isolation treatment or medical observation and those who cannot work as normal due to isolation measures or other emergency measures by the government, the enterprises shall pay remunerations during this period, and shall not unilaterally terminate the employment according to Articles 40 and 41 of the Labour Contract Law. In addition, the employment contract for the foregoing employees shall be extended to the end of the employee's medical period, medical observation period, isolation period or the emergency measures taken by the government, if the specified ending date of contract expires during such medical period or isolation period etc.
There have been and will probably be provisions on stabilizing employment relationship and dealing with disputes released by authorities on national and local levels during the duration of epidemic. Practically, enterprises are recommended to conduct assessment before taking actions by referring to the local best practices and the new provisions (to be) released.
Notes：
[1] According to Article 4 of the Labour Contract Law, when an employer formulates, amends or decides on internal rules and regulations, or decides on matters relating to remunerations, working time, rest and vacations, etc which have a direct bearing on immediate interests of the employees, the employer shall discuss the same with the employee representative congress or all the employees, provide them the opportunity to put forward plans and provide comments, whereupon such matters shall be determined through consultations with the trade union or employee representatives on an equal basis.
[2] Taking Shanghai as an example, Article 51 of the Regulations on Employment Contract in Shanghai stipulates that employers shall be liable where the part-time workers they use cause work-related injuries or occupational diseases during the course of providing services. In addition, Article 2 Paragraph 1 of the Regulations on Work-Related Injury stipulates that domestic enterprises, institutions, social organizations, private non-enterprise units, foundations, law firms, accounting firms and other organizations and individual industrial and commercial households with employees shall participate in the social insurance system and pay work-related injury premiums for all employees.
[3] Under the present foreign investment regime, whether those foreign invested companies which do not fall within the category of negative list are subject to such requirement is not elaborated herein.
[4] The Labour Contract Law does not explicitly provide that local labour authorities exercise the power of “approving” enterprises to implement mass dismissal.