疫情防控期间企业用工指南

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答：用人单位可以与候选人进行协商，将报到日期顺延至疫情缓解以及封控措施取消后的日期。对于用人单位需要紧急入职并履行工作职责的候选人，我们建议用人单位可设立特殊通道，通过在线和邮件沟通的方式与候选人确认劳动合同条款、建立劳动关系。

Answer: Employers may negotiate with the candidates to postpone the reporting date until the pandemic is eased and lockdown measures are lifted.  For candidates who are urgently needed by employers to get onboard and perform work duties, we would advise the employers to set up a special channel to confirm employment terms and establish employment relation with the candidates through online and email communication.

答：依据人力资源社会保障部和最高人民法院《关于联合发布第一批劳动人事争议典型案例的通知》（“《典型案例》”），受疫情影响的民事合同主体可依法适用不可抗力条款，但劳动合同主体则不适用并不得因疫情影响中止履行劳动合同。

Answer: According to the Circular on Joint Issuance of the First Batch of Typical Labor Dispute Cases (the "Typical Cases") of the Ministry of Human Resources and Social Security and the Supreme People's Court, the parties to civil contracts can apply force majeure clauses in accordance with the law if they are affected by the pandemic, however, force majeure clauses are not applicable to parties of the employment contracts, and performance of employment contracts shall not be suspended due to the pandemic.

答：《劳动合同法》规定同一用人单位与同一劳动者只能约定一次试用期。对于在试用期内的员工由于疫情原因无法进行考核的，我们建议用人单位可以与员工在协商一致后中止试用期；若用人单位单方决定中止员工试用期的，或存在一定法律风险。

Answer: The Employment Contract Law stipulates that the same employer and the same employee can only agree, one time, on probationary period.  If employers are unable to conduct assessment of the employees’ performance during probationary period due to the pandemic, we would suggest employers negotiate with the employees and achieve mutual agreement on suspension of probationary period.  There may be potential legal risks for employers if they unilaterally decide to suspend employees’ probationary period.

答：依据人力资源社会保障部发布的通知，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。在此期间，劳动合同到期的，分别顺延至职工医疗期期满、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。

Answer: According to the circular issued by the Ministry of Human Resources and Social Security, for those employees who are patients or suspected patients infected with COVID-19 and their close contacts that cannot provide normal work during the period of medical treatment in isolation, medical observation, and government’s implementation of isolation measures or other emergency measures, their employers shall pay remuneration to these employees for this kind of period.  If employment contracts expire during such period, the employment contracts shall be respectively extended to the expiration of the medical treatment period, expiration of the medical observation period, expiration of the isolation period, or the end of emergency measures taken by the government.

答：若用人单位安排员工在家办公的，应支付员工正常工资；若无法安排员工在家办公的，用人单位可提前通知员工使用年休假，或决定对此类员工适用“停工停产”相关规定。

Answer: If employers arrange employees to work from home, such employees should be paid the normal salary.  If it is impossible to arrange employees to work from home, the employers may notify the employees in advance to use their annual leaves or decide to apply relevant provisions regarding suspension of operation for such employees.

若用人单位决定对员工适用“停工停产”的，在一个工资支付周期内的，应按劳动合同规定的标准支付员工工资；超过一个工资支付周期的，员工没有提供正常劳动的，应当发放生活费，生活费标准按各地规定的办法执行。以上海为例，生活费应不低于上海市最低工资标准。

Where employers decide to apply suspension of operation for employees, within one salary payment cycle, the employers shall pay the salary to the employees based on the standard stipulated in the employment contracts; after one salary payment cycle, if employees do not provide normal work, then employees shall be paid the living expenses.  The standard of living expenses shall be determined by the local regulation of different provinces or cities. Taking Shanghai as an example, the living expenses shall be no lower than the minimum wage standard in Shanghai.

答：依据《典型案例》，如用人单位实行按月支付工资的制度，工资支付周期应为一个月。如停工停产期间从3月28日起计算，3月28日至4月27日则为第一个工资支付周期。

Answer: According to the Typical Cases, if the employer implements the system of paying salary on a monthly basis, then the salary payment cycle should be one month.  For example, if the suspension of operation starts from March 28, then the first salary payment cycle shall be from March 28 to April 27.

答：依据《工资支付暂行规定》，劳动者在法定工作时间内依法参加社会活动期间，用人单位应视同其提供了正常劳动而支付工资。但是，社区志愿服务以自愿参加为原则，其在性质上不同于《工资支付暂行规定》中所规定的员工依法参加的社会活动。因此，员工以参加社区志愿服务为由要求用人单位发放正常工资不具有法律依据。

Answer: According to the Interim Provisions on Salary Payment, if an employee participates in social activities during his or her statutory working hours in accordance with the law, the employee shall be viewed as having provided normal work and the employer shall correspondingly pay salary to the employee.  However, the provision of volunteer service in the community is based on a voluntary principle, which is different in nature from the social activities described in the Interim Provisions on Salary Payment.  Therefore, if an employee participates in community volunteer service, there is no legal basis for such an employee to request the normal salary from the employer by relying on this reason.

答: 依据《劳动合同法》的规定，用人单位有义务按照劳动合同的约定为员工提供劳动保护以及劳动条件。在居家办公的情形下，用人单位无法对员工的居家环境进行充分评估，为降低潜在法律风险，我们建议用人单位取得员工认可其居家环境适宜开展所需办公活动的书面确认。

Answer: According to the Employment Contract Law, employers are obliged to provide labor protection and labor conditions for employees in accordance with the employment contracts.  When employees work from home, their employers may not be able to fully assess the employees' working environment at home.  To mitigate potential legal risks, it is advisable for the employers to obtain employees’ written confirmation that their home environment is suitable for conducting the required work.

答：自2022年4月11日起，上海全市按照“封控区”“管控区”“防范区”实施差异化管理。在员工向用人单位报告所属区域之后，若用人单位对于员工的情况存在疑问的，用人单位可以要求员工提供相关证明，例如，由社区居委就居住情况以及封控期间出具的书面证明。

Answer: From April 11, 2022, all areas of Shanghai have adopted differentiated management by identifying the "closed area", "controlled area" and "precautionary area".  After employees report to their employers about which area they belong to, if an employer has any doubt about the employee's situation, the employer may request the employee to provide supporting documents, such as a written certificate issued by the community or neighborhood committee regarding the employee’s residential status and closed period of the area concerned. 

答：若用人单位因疫情原因安排员工在家办公，在疫情封控措施解除后，用人单位有权要求员工返回原办公场所进行工作。若员工无正当理由拒绝的，用人单位有权依据规章制度对员工进行纪律处分。

Answer: If employers arrange employees to work from home due to the pandemic, after the pandemic control measures are lifted, the employers have the right to request the employees to resume work at the original workplace. If an employee refuses without justifiable reasons, the employer has the right to take disciplinary action against the employee in accordance with the rules and policies.

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