Update on Work Arrangements as COVID-19 Surges in China
Having kept COVID-19 largely under control a few months after it first broke out in Wuhan in early 2020, China has kept COVID-19 case numbers very low for most of 2020 and throughout 2021. However, since the beginning of this year COVID-19 cases started to surge again, with more and more cities affected especially in the last two weeks, in what appears to be the worst COVID-19 crisis that China has ever suffered in the last two years. Shenzhen, a city of 17 million people bordering Hong Kong, just ended its virtual lockdown last Sunday and Shanghai citizens are subject to on and off restrictions on their movement and multiple rounds of COVID-19 testing.
Due to the increase of Omicron variant infections, the Chinese government has further revised its polices on COVID-19 in what appears to be a slight relaxation of controls, though these controls still seem far more restrictive compared with the COVID-19 controls imposed by governments in other countries. Specifically, on 11 March 2022, the National Health Commission (NHC) released the Application Plan for Detection of Novel Coronavirus Antigen (Trial), allowing citizens to purchase self-test kits for antigen detection. (Before this, people in China must go to government designated testing agencies for testing.) On 14 March 2022, the NHC issued Diagnosis and Treatment Protocol for Novel Coronavirus Pneumonia (Trial Version 9), according to which, patients with mild symptoms will undergo central quarantine instead of hospitalisation, and recovered patients would be only required to undergo 7-day home health monitoring rather than 14-day central quarantine after being discharged from the hospitals.
During this challenging time, employers need to revisit their working arrangements for employees to be more attuned to the national and local policies as well as employee expectations and needs. In order to help companies monitor and manage the workplace, we have chosen three major cities in China to revisit how issues such as home working, COVID-19 testing and vaccination of the workforce may apply in light of the current situation and compare across these locations. These are issues which affected other countries extensively but not so much for China at the time, but with the new wave of outbreak it is worth revisiting for China. Please note, however, that the below summary is mainly based on public information as of 22 March 2022. Please stay attentive to our new updates as the local rules may change from time to time, especially when there are more new cases emerging.
Remote working
| City | Question 1: Are employers permitted to implement remote working with or without the government imposing lockdowns? | Question 2: Is it common for employers to implement remote working with or without the government imposing lockdowns? |
| Beijing | Generally speaking, employers are permitted to implement remote working when the local government imposes lockdowns on office or residential buildings. There is no mandatory requirement for employers to pay for the costs. Employers are also permitted to implement remote working during other special time periods as encouraged by the local government. For example, during the recently held Beijing Winter Olympics and Paralympics, the Beijing government “advocated” companies to adopt flexible working arrangements with their employees, such as working from home, though it was not a mandatory requirement. Outside of those situations where employers practically have to implement remote working due to government imposed lockdowns, employers may implement remote working, subject to the individual consent. | There are certain situations when employers practically have to implement remote working, due to office or residential building lockdowns imposed by the government, or during other special time periods as encouraged by the local government (e.g., the recently held Beijing Winter Olympics and Paralympics as discussed in the column to the left). Outside of those situations where employers practically have to implement remote working due to government imposed lockdowns, it is less common for employers to implement full remote working given the “zero” or small number of COVID-19 infections in most of the time in the past two years. Some employers in Beijing offer hybrid working based on manager’s approval. |
| Shanghai | Same as Beijing. In addition, ordinary employers (i.e., employers other than those in special industries, such as healthcare providers) in Shanghai are encouraged by the Shanghai government to implement remote working at this time. | Currently, it is very common for employers in Shanghai to implement remote working given the recent spike in COVID-19 infections and lockdowns on many office buildings and residential compounds in Shanghai in the past one week. As mentioned in the column to the left, the Shanghai government is encouraging remote working at this time regardless of building lockdowns. |
| Shenzhen | Same as Beijing. In addition, ordinary employers in Shenzhen are required by the Shenzhen government to implement remote working at this time as on 13 March 2022, the Shenzhen government imposed a citywide, 7-day lockdown from 14 March to 20 March, during which period all companies with premises in commercial properties are required to adopt remote working arrangement. | During last week, almost all ordinary employers in Shenzhen were implementing remote working due to the citywide lockdown mentioned in the column to the left. Notably, city transportation was suspended during the lockdown period. The week-long lockdown was lifted on 21 March. Remote working is still common but workers are gradually returning to the office. |
Virus testing and vaccination
| City | Question 1: Is it permitted and common for employers to require their employees to get tested and/or vaccinated for COVID-19 as a condition of the employees’ continued employment with or without the government imposing lockdowns? | Question 2: Is it permitted and common for employers to require their employees to get tested and/or vaccinated for COVID-19 as a condition of employees’ going to office with or without the government imposing lockdowns? |
| Beijing | Generally speaking, a requirement by ordinary employers for their employees to get tested and/or vaccinated for COVID-19 as a condition of the employees’ continued employment is unenforceable. Please note that in case of lockdowns on the office premises where the affected employees work or on the housing where the affected employees live, these employees would be subject to mandatory tests imposed by the local government, with or without the employer’s involvement.1 Refusing to take such tests may subject the individuals to legal consequences such as being rendered administrative warning, monetary fines, and/or even being detained by the local police, which may then enable the individual’s employer to summarily dismiss his/her employment depending on the seriousness of the case and subject to the specific terms of the employer’s applicable work rules. Accordingly, in practice, it is not common for ordinary employers to impose these requirements as a condition of their employees’ continued employment. However, as the virus situation evolves and as self testing kits become more widely available, the reasonableness of such as requirement by an employer outside of the mandatory testing requirements may change. | Generally speaking there is a better chance of enforcing a requirement for employees to get tested or vaccinated for COVID-19 as a condition of returning to office, than to discontinue employment for failing to do so. However, as mentioned in the column to the left, many individuals are subject to mandatory tests imposed by the local government in residential communities, or by airlines or the railway company when travelling, so employers may not need to require separate tests if they were tested recently. At present, rather than imposing their own requirements on employees to get tested or vaccinated before going to the office, most employers are still relying solely on the local government’s relatively strict COVID-19 control measures outlined above, and the health code in mobile phones as well as the government’s ability to track individuals’ whereabouts and match them against those who are tested positive or are close contacts to isolate anybody deemed to be a risk. Whether or not ordinary employers can impose their own requirements on employees to get tested or vaccinated for COVID-19 as a condition of them going to office would normally depend on whether the requirements are reasonable based on more specific facts. For example, if the employees have recently travelled to places which are classified as “medium/high-risk areas” but somehow was not tested by the government. However, as the virus situation evolves and as self testing kits become more widely available, the reasonableness and prevalence of such as requirement by an employer outside of the mandatory testing/vaccination requirements may change. |
| Shanghai | Same as Beijing | Shanghai has recently launched a city-wide testing programme that started from 16 March 2022 and is expected to last around one week. In addition, several districts in Shanghai require people going to office during the week of 21 March present negative test results taken at any time between 16-20 March in order to enter the workplace. Employers are obligated to confirm the negative test results before letting their employees in. As the virus situation evolves and as self testing kits become more widely available, it may become more reasonable and common for employers to impose such requirement by an employer outside of the mandatory testing/vaccination requirements. |
| Shenzhen | Same as Beijing | During the 7-day lockdown discussed above, everyone in Shenzhen was required by the local government to take three mandatory tests. With the resumption of business this week, people in Shenzhen generally need to present negative test results taken within 48 hours to enter the workplace because such test results are necessary for taking any city transportation and are also required by many property management companies (even though the Shenzhen government has yet to explicitly impose such requirement on the workplace). As the virus situation evolves and as self testing kits become more widely available, it may become more reasonable and common for employers to impose such requirement by an employer outside of the mandatory testing/vaccination requirements. |
When implementing remote work arrangements, it is advisable to document the rights and obligations of employers and employees such as in the areas of working hours tracking, information security, health and safety, work injury and insurance. Employers in China should keep an eye on the development of this issue to obtain more flexibility in terms of imposing vaccination / testing requirements and implementing remote working in response to the virus in the future.
1 In case of lockdowns on workplaces, employers would need to cooperate with the testing agencies designated by the local government to get their employees tested by such testing agencies per local requirements. For example, employers would need to gather all their employees in the office at the assigned time to take the tests, etc.
