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Analysis on legal issues of labor disputes related to the epidemic
2022-03-16 15:34:00   来源:   评论:0 点击:

In 2022, the new crown pneumonia epidemic suddenly appeared in a regional outbreak Due to the raging of the mu
In 2022, the new crown pneumonia epidemic suddenly appeared in a regional outbreak. Due to the raging of the mutant virus Omicron, on March 13, 2022, there were 895 new local confirmed cases in Jilin Province. As of March 13, 2022, Shandong Province, There are 848 local confirmed cases and 1,241 local asymptomatic infections. In addition, the epidemic prevention and control situation in Shenzhen, Shanghai and other places has become more severe and complicated. The normalization of epidemic prevention and control has become a general consensus in all sectors of society. Affected by the new crown epidemic, some industries and enterprises are facing greater production and operation pressure due to epidemic prevention and control requirements, and workers are faced with the risk of being suspended from wages, reduced wages, and laid off. The instability of labor relations has increased, and labor disputes have become prominent. It will inevitably lead to a series of new legal problems in the field of labor.
 
01Basic principles for handling labor disputes related to the epidemic
 
Enterprises should unblock the channels of dialogue with workers, stabilize jobs and labor relations through various means, and effectively protect the legitimate rights and interests of workers. Workers should care about and support the survival and development of the enterprise, promote the spirit of labor and craftsmanship, and contribute to the long-term development of the enterprise. The adjudication department must balance the interests of both employers and employees in accordance with the law, properly mediate and resolve labor disputes, adhere to the principle of "dual protection", pay equal attention to protecting the rights and interests of workers in accordance with the law and ensuring the survival and development of enterprises, and help solve the dilemma that both employers and employees are currently facing due to the impact of the epidemic .
 
02 Wage issues in labor disputes related to the epidemic
 
(1) The wages of workers during the isolation treatment and medical observation period. According to the "Notice on Properly Handling Labor Relations Issues During the Prevention and Control of Novel Coronavirus Pneumonia Epidemic" issued by the General Office of the Ministry of Human Resources and Social Security (Renshe Office Manufacture Dian [2020] No. 5), patients with new coronary pneumonia and suspected patients are , During the period of isolation and treatment or medical observation of close contacts, as well as workers who are unable to provide normal labor due to the implementation of isolation measures or other emergency measures by the government, the employer shall regard it as providing normal labor and pay the workers wages for normal working hours . However, if a worker does not comply with the government's prevention and control measures, and because of his own subjective intentions, he is quarantined for treatment or under medical observation, and the worker claims that the labor remuneration during the period is generally not supported by the adjudication department.
 
(2) Wage payment for workers at home, telephone, internet, and telecommuting. According to the "Labor Contract Law", the employer and the worker agree that they can change the content of the labor contract. In this regard, the Shandong High Court issued the "Minutes of the Meeting of Judges in Labor Dispute Cases Involving the Epidemic" issued by the Shandong High Court during the epidemic. , both parties can agree on the salary standard during home office and telecommuting. If there is no agreement, the enterprise may refer to the wage standard for normal working hours, and calculate the wage and remuneration according to the actual working time and workload of the laborer. The converted hourly wage shall not be lower than the city's hourly minimum wage.
 
(3) The wages paid by the workers for the suspension of work and production due to the epidemic prevention and control of the enterprise. According to Article 12 of the "Interim Provisions on Wage Payments" and the "Notice on Properly Handling Labor Relations Issues During the Prevention and Control of the Novel Coronavirus Pneumonia Epidemic" (Renshe Hall Fangfa Dian [2020] No. 5), the prevention and control of enterprises due to the epidemic For workers who are still unable to provide normal labor after all kinds of vacations have been used up during the period of delayed resumption of work or non-return to work affected by the epidemic, the enterprise shall pay according to the standard stipulated in the labor contract within a wage payment cycle. Employee wages; if it exceeds one wage payment cycle, wages may be paid according to the labor provided by the laborers and according to the newly agreed standard between the two parties, but not lower than the minimum wage standard; if the laborers do not provide normal labor, the enterprise shall pay according to relevant regulations. living expenses.
 
(4) The enterprise may postpone the payment of wages for production and operation difficulties due to the epidemic. According to the "Opinions on Doing a Good Job in Labor Relations and Supporting Enterprises Resuming Work and Production During the Prevention and Control of the Novel Coronavirus Pneumonia" (Renshebufa [2020] No. 8), combined with various local laws and regulations, such as "Shanghai Enterprise Wage Payments" Article 10 of the Measures and Article 32 of the Regulations on Wage Payment in Shandong Province, etc., for enterprises that have difficulty in production and operation due to the impact of the epidemic and are temporarily unable to pay wages, the enterprise may delay payment after consultation with trade unions or labor representatives. workers' wages.
 
03 Recruitment of workers involved in the epidemic
 
(1) Recruitment of workers who have suffered from COVID-19. According to the Law on the Prevention and Control of Infectious Diseases and the Employment Promotion Law, employers must not refuse to hire workers who have suffered from COVID-19, otherwise they will violate the regulations on employment discrimination.
 
(2) The worker's explanation of the infection, suspected infection, and personal information such as the location of going out and the route to return to work. According to the "Infectious Disease Prevention Law", "Labor Contract Law" and relevant requirements for epidemic prevention and control, enterprises may collect information related to epidemic prevention and control from workers in accordance with the law, including but not limited to residential addresses, activity trajectories, health information, etc., but Information unrelated to epidemic prevention and control shall not be collected, and the collection, processing or disclosure of relevant information shall comply with the legal provisions on personal information protection, and the employment of workers shall not be refused on the grounds of the above information.
 
04 Dissolution or termination of epidemic-related labor relations
 
(1) During the epidemic period, the laborer voluntarily terminates the labor relationship. According to Article 37 of the "Labor Contract Law", the laborer can voluntarily terminate the labor contract with the enterprise, but if the probation period is three days in advance, and the non-probation period is 30 days in advance, the enterprise shall be notified in writing. Enterprises can submit written resignation reports from employees in accordance with the normal process. If it is inconvenient to report in writing, it is necessary to keep fixed forms of evidence such as WeChat, text messages, and emails.
 
(2) The enterprise has been investigated for criminal responsibility and terminated the labor relationship due to the employee’s involvement in a criminal crime related to epidemic prevention and control. According to Article 39 of the "Labor Contract Law" and the "Opinions on Legally Punishing Violations and Crimes Obstructing the Prevention and Control of the Novel Coronavirus Pneumonia Epidemic", enterprises can rescind labor contracts with workers in accordance with the law, and do not need to pay the economic compensate. According to Article 29 of the Opinions on Several Issues Concerning the Implementation of the Labor Law of the People's Republic of China, being investigated for criminal responsibility according to law refers to those who have been exempted from prosecution by the people's procuratorate, sentenced to criminal punishment by the people's court, Article 12 Whoever is exempted from criminal punishment shall be sentenced to criminal detention by a people's court, or to fixed-term imprisonment of not more than three years with probation.
 
(3) The enterprise dissolves or terminates the labor relationship due to the employee suffering from the new crown, suspected, close contact, isolation, treatment, or medical observation. New coronary pneumonia patients, suspected patients, close contacts during their isolation treatment or medical observation, as well as enterprise employees who cannot provide normal labor due to the government's implementation of isolation measures or other emergency measures, enterprises shall not comply with the fourth law of the "Labor Contract Law". Article 10 and Article 41 shall terminate the labor contract with the laborer or return the dispatched laborer. During this period, if the labor contract expires, it will be postponed to the expiration of the employee's medical treatment period, medical observation period, isolation period, or emergency measures taken by the government. contract, workers' compensation should be paid.
 
(4) Enterprises may lay off staff due to the epidemic. If an enterprise has difficulties in production and operation due to the impact of the epidemic, in accordance with Article 41 of the "Labor Contract Law", it shall lay off more than 20 employees, or lay off less than 20 employees but account for more than 10% of the total number of employees of the enterprise. , 30 days in advance to explain the situation to the trade union or all employees, and listen to the opinions of the trade union or the employees. However, in practice, there is no clear legal basis for "serious difficulties in production and operation", the implementation of democratic procedures and reporting procedures are cumbersome and complicated, and improper operation can easily constitute illegal termination. If enterprises have difficulties in production and operation due to the impact of the epidemic, they can adjust their salaries, take rotations, shorten working hours, etc. to stabilize their jobs by negotiating with their employees, and try not to lay off or reduce layoffs as much as possible.
 
Labor disputes related to the epidemic have their own particularities. Enterprises and workers should make full use of mediation, arbitration, judicial and other legal channels to handle disputes in accordance with laws and regulations.

Written by: Chen Chen

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