How to Manage International Employees During Quarantine?
Evelyn, a human resource director of a group company, has been in great pressure recently. Evelyn first led her team to study notices published by Chinese governments at all levels on issues like rest and leaves, resumption of work, overtime pay of Chinese employees and then issued group-wide announcements. In the early morning of January 31st (Beijing time), the World Health Organization announced that the 2019-nCoV shall be considered as “public health emergency of international concern”. Without even taking a break, it seems that Evelyn needs to start to deal with a series of issues such as the entry and exit, working arrangement and salary payment of employees working across borders.
Evelyn’s problems also trouble many enterprises. As such, the labor team of King & Wood Mallesons summarizes questions related to employees working across borders that enterprises pay close attention to, and provides the following answers and interpretations based on our research on PRC laws and regulations and current policies of Beijing. Considering that cross-border working arrangement may also involve foreign laws, we suggest that enterprises should consider rules and requirements of foreign laws at the same time to ensure the legal compliance of the working arrangement.
Question 1：
During the period of 2019-nCoV prevention and control, will the exit and entry of employees working across borders be restricted？
Answer：
Except for the lockdown of the exit channel of Wuhan ports, Chinese port visa authorities are operating normally. Foreign employees can exit or enter with valid international travel documents. Some countries and regions have implemented entry restrictions in response to the outbreak, we suggest that foreign employees shall pay close attention to regulations and practice of the destination country or region to avoid the impact on work due to entry refusals
According to the Questions and Answers Concerning Immigration and Exit-Entry Administration During the Period of Prevention and Control on Pneumonia Caused by Novel Coronavirus by National Immigration Administration, except for the lockdown of the exit channel of Wuhan ports, all port visa authorities of China are operating as usual. Visa-free transit policies for foreigners are not adjusted. All land, sea and air ports of China continue to be open and are functioning. Foreigners and Chinese residents can enter or exit as usual with valid international travel documents.
Employees working across borders who do need to exit from China need to note that, some countries and regions have implemented entry restrictions in response to the outbreak. Take the United States as an example, on January 31st, the working group of the White House in response to the Novel Coronavirus announced that, starting from 5 p.m. February 2nd (Eastern Standard Time), the United States will adopt the following temporary restrictive measures ：
When entering into the U.S., U.S. citizens who have visited Hubei Province within the previous 14 days need to be in mandatory quarantine for up to 14 days;
Medical examination is required for U.S. citizens who have visited other areas of China within the previous 14 days, and they need to be in self-quarantine under supervision for up to 14 days; and
Foreign citizens who have visited China within the previous 14 days are not allowed to enter the U.S. temporarily, except for immediate family of U.S. citizens or U.S. green card holders.
We suggest that employees working across borders who do need to exit from China should learn in advance entry regulations and practice of destination countries or regions, to avoid the impact on work due to entry refusals and financial and time losses incurred thereof. As of February 2nd, please see below the table at the end of the article for recent entry management measures adopted by relevant countries or regions.
In addition, the National Immigration Administration requires that, for foreigners who do need to exit, if entry is allowed in countries or regions they are entering, they should arrive at exit ports well ahead of the departure time for necessary checks conducted by relevant departments. Foreigners having fever with symptoms of acute respiratory infection such as cough or breathing difficulties shall avoid international travels, seek immediate medical treatment at the nearest hospital, and provide information such as recent activities and close contacts to relevant management personnel for relevant department to conduct necessary screening measures.
Question 2：
During the period of 2019-nCoV prevention and control, how to deal with the situation that foreign employees working in China need to return China to work, or enterprises registered in China need to hire foreigners to work in China?
Answer：
Since China has not implemented restrictions on the exit and entry of foreigners currently, foreign employees working in China will not be deterred from returning to China to work.
An enterprise that hires foreigners to work in China shall enter into employment contract with the employee as usual, handle work permit and residence permit timely, and keep in touch with the employee. If the city is blocked, the enterprise can consider delaying the performance of the offer or ending the performance of the offer when certain conditions are met. The enterprise also needs to inform the foreigner it intends to hire timely.
According to the Questions and Answers Concerning Immigration and Exit-Entry Administration During the Period of Prevention and Control on Pneumonia Caused by Novel Coronavirus by National Immigration Administration, during the period of 2019-nCoV prevention and control, all exit-entry administration authorities of public security organ in China will be in full service for visa extension and stay or residence permits of foreigners to ensure foreigners’ legitimate stay in China. For foreigners with emergency situation, urgent services for processing relevant documents will also be provided.
To effectively avoid crowds-gathering risks, exit-entry administration authorities of public security organ will arrange appointment for certificate handling service based on the actual situation. Foreigners can contact in advance and arrange the time for certificate handling reasonably. For institutions that host high numbers of foreigners, such as universities, scientific research institutes and enterprises and public institutions, exit-entry administration authorities will allow additional agent service or provide other necessary conveniences depending on the actual needs.
As such, if the number of foreigners an enterprise intends to hire is large, we suggest that the enterprise should communicate with the exit-entry administration authority in advance on certificate agent service or other necessary facilitation measures, so as to assist foreigners it intends to hire with the completion of work permit and residence permit processing expeditiously during the period of 2019-nCoV prevention and control.
In addition, please note that enterprises need to keep in touch with foreigners they intend to hire. For enterprises in Wuhan, foreigners they intend to hire are unable to be on-board in accordance with the original offer due to the block of the city, we suggest that enterprises shall delay the performance of the offer or end the performance of the offer when certain conditions are met and inform foreigners they intend to hire of the specific arrangement in writing in advance. For enterprises in other areas, before arranging foreigners they intend to hire to work in China, enterprises are suggested to confirm local epidemic prevention and control arrangements at any time. Once the city is blocked, enterprises need to inform foreigners they intend to hire in writing of the arrangement of delaying or ending the offer timely to avoid losses.
Question 3：
During the period of 2019-nCoV prevention and control, how to deal with the situation that work permit and residence permit of foreign employees living in China will expire soon?
Answer：
We suggest that foreign employees shall decide in advance whether to process the extension of work permit and residence permit and adopt the following measures depending on the situation -
（1）For foreign employees who decide to process the extension, they are suggested to contact with the exit-entry administration authority of public security organ as soon as possible, and process the extension timely.
We suggest that foreign employees take rules of Questions and Answers Concerning Immigration and Exit-Entry Administration during the Period of Prevention and Control on Pneumonia Caused by Novel Coronavirus as provided in Question 2 as reference, contact the exit-entry administration authority of public security organ in advance and make appointment. For foreign employees with urgent needs, they can communicate with the exit-entry administration authority and apply for expedited processing service. Foreign employees are suggested to process the extension timely to avoid legal risks such as unlawful employment and overstaying.
For enterprises with a relatively large amount of foreign employees who need to process the extension, they may consider communicating with the exit-entry administration authority on certificate agent service or other necessary facilitation measures and supervising and assisting foreign employees to apply for the extension of work permit and residence permit in time, to avoid unlawful employment risks.
（2） For foreign employees who decide to exit, they are suggested to pay close attention to the situation of entry restriction measures adopted by destination countries or regions. For foreign employees who are unable to exit, they are suggested to communicate with the immigration administration authorities timely and seek for solutions to reduce the risk of penalties for overstaying.
Questions and Answers Concerning Immigration and Exit-Entry Administration During the Period of Prevention and Control on Pneumonia Caused by Novel Coronavirus by National Immigration Administration clearly provides that, according to the PRC Exit and Entry Administration Law, foreigners should exit China before the expiration of their visas, stay or residence permits; foreigners that need to continue to stay or reside in China shall apply for the extension of visas, stay or residence permits at exit-entry administration authorities. According to relevant laws and current situation, for foreigners who are unable to exit as scheduled and fail to apply for the extension of visas or residence permits in time due to the reason of epidemic prevention and control, immigration administration authorities may, based on actual situation, impose lighter or mitigated penalties or exempt such foreigners from overstaying penalties in accordance with laws and regulations.
As such, foreign employees are suggested to pay close attention to the situation of entry restriction measures adopted by destination countries or regions.
If the destination country or region does not prohibit entry, foreign employees are suggested to handle exit formalities timely, purchase plane tickets, and return to the destination country or region in time.
If the destination country or region has prohibited entry, foreign employees are suggested to consult immigration administration authorities timely on the exit difficult problem, fully communicate with them, and seek for solutions to the problem of residence in China during the period of epidemic prevention and control, in order to minimize or avoid penalties of overstaying as possible as they could.
Question 4：
During the period of 2019-nCoV prevention and control, how to deal with issues such as home-based working, rest and leaves, and overtime work of foreign employees living in China?
Answer：
We suggest that enterprises shall make overall arrangements on home-based working, rest and leaves, and overtime work of Chinese employees and foreign employees based on current policies of Chinese governments at all levels. Please see article “疫情防控 | 北京企业究竟咋安排职工上班？” （2019-nCoV PP | How Should Beijing Enterprises Make Working Arrangements for Employees?）for detailed interpretation.
Question 5：
During the period of 2019-nCoV prevention and control, how to deal with the situation that employees working across borders are unable to return or temporarily unable to return to work in the country or region where the work place is located?
Answer：
As of 18:08 February 2nd, 71 countries have adopted entry restriction measures, and 41 of these countries only conduct 2019-nCoV screening at ports of entry. Among the other 30 countries, some countries have prohibited Chinese citizens or personnel departing from mainland China from entering; some countries require quarantines of a certain time for those affected by the outbreak. Affected by entry restrictions adopted by relevant countries, some employees are unable to return or temporarily unable to return to work in the country or region where the work place is located.
No relevant policy has been issued currently in this regard. According to current policies, enterprises may consider making the following arrangements for these employees depending on specific situations of different enterprises –
（1）Arranging employees to work remotely/from home and inform employees of specific working arrangement and requirements in writing in advance
（2）Arranging employees to take annual leave or time off in lieu (if applicable)
Based on characteristics of business management of enterprises and the extent of the impact of 2019-nCoV, some enterprises may have the following situations-
Job characteristics are not suitable for remote working;
Employees working at main positions in the country or region where the work place is located are temporarily unable to return to work;
Other situations where arranging employees to work remotely is not suitable.
As such, some enterprises wish not to arrange employees to work temporarily. We suggest that enterprises in Beijing may consider applying the Notice of Beijing Human Resources and Social Security Bureau on Relevant Issues Relating to Maintaining Stability of Employment Relationship during Epidemic Prevention and Control Period and arranging employees to take annual leave or arranging employees to take time off in lieu of employees’ previous overtime work (if any).
（3）Negotiating with employees to reduce working hours
Since there may be time differences caused by remote working/working from home, or only part of the working requirements can be met due to job characteristics, plus that employees may not be able to return to work for a relatively long period, enterprises may consider negotiating with employees on their working hours and trying to obtain their consent. If employees agree to change their working hours, it is necessary for enterprises to enter into written agreements with employees on issues like working arrangements and salary adjustment.
（4）Negotiating with employees to make homestay arrangement
Affected by entry restrictions adopted by countries or regions where working location is located, some employees may not be able to return to work for a relatively long period. For enterprises in Beijing that are unable to either arrange employees to work remotely or arrange employees to take annual leave or time off in lieu, they can consider applying the Notice of Beijing Human Resources and Social Security Bureau on Relevant Issues Relating to Maintaining Stability of Employment Relationship during Epidemic Prevention and Control Period, negotiating with employees to make homestay arrangement, and entering into written agreements on issues relating to homestay arrangement. During the homestay period, enterprises shall pay employees basic living expenses at a standard that is no less than 70% of the minimum salary standard of Beijing.
（5）Negotiating with employees to make position-adjustment arrangement and/or adjust working location
Affected by entry restrictions adopted by countries or regions where working location is located, some employees may not be able to return to working location for a relatively long period. Enterprises may, based on specific situation, consider negotiating with employees to adjust the position and/or the working location and entering into written agreements regarding the adjustment. Work permit formalities need to be handled timely if they are required by relevant nation regulations.
Question 6：
Due to the need of 2019-nCoV prevention and control, if the home countries of foreign employees working in China provide convenience for employees to return to their home countries and employees decide to return, how to deal with their employment relationship?
Answer：
We suggest that enterprises can arrange employees to work remotely, or arrange them to take annual leave or time off in lieu. Enterprises may also consider negotiating with employees to make homestay arrangement, or consider terminating or ending the employment contract when certain conditions are met.
If enterprises arrange employees to work remotely, they shall inform employees in writing of the specific working arrangements and requirements in advance.
If remote working is unable to be arranged, enterprises in Beijing may consider applying the Notice of Beijing Human Resources and Social Security Bureau on Relevant Issues Relating to Maintaining Stability of Employment Relationship during Epidemic Prevention and Control Period and arranging employees to take annual leave or arranging employees to take time off in lieu of employees’ previous overtime work (if any).
In addition, enterprises may consider fully negotiating with employees and making homestay arrangements upon employees’ consent. Enterprises need to enter into written agreements with employees on homestay arrangements and the payment of living expenses.
If enterprises wish to terminate or end the employment contract with employees, they may consider negotiating fully with employees and terminating or ending the employment contract in accordance with the law.
In the special period of 2019-nCoV prevention and control, Chinese governments at all levels will continue to issue relevant policies, and entry restriction measures of relevant countries will also continue to be updated. We suggest that enterprises pay continuous attention to new regulations and entry restriction measures of destination countries and regions, and adjust employment arrangements accordingly based on rules and requirements of foreign laws. The above Q&A are reference that we prepared for enterprises according to current regulations, and it does not constitute legal opinion. For specific issues, please feel free to contact our labor law team of King & Wood Mallesons at any time. We will also pay continuous attention on latest developments and constantly update policies and regulations on employment management during the period of 2019-nCoV prevention and control to provide support for enterprises. Let the government, enterprises and the public work together to overcome the difficulties!
Annex: entry restriction measures adopted by relevant countries
Authority: National Immigration Administration
February 2, 2020
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——— Authors ———
Jiang Junlu
Partner
Regulatory & Compliance Group
jiangjunlu@cn.kwm.com
Dr. Jiang Junlu specializes in labor issues and social security. He was one of the earliest lawyers to practice antitrust and competition law, and environmental protection law in China.He was among the first lawyers to be awarded with a doctoral degree in labor law in China. He has a thorough understanding of labor laws in China and those of other countries and is experienced in reviewing and drafting labor contracts and internal labor policies for Chinese large enterprises and multinationals. Mr. Jiang often represents employers in labor dispute settlements. He is well recognized for his devotion to the legislation, implementation, and judicial practice of China's Labor Law.
Linda Liang
Partner
Regulatory & Compliance Group
linda.liang@cn.kwm.com
Ms. Liang specializes in employment and labor law, social insurance law, employment arbitration and litigation, occupational health and production safety, etc.Ms. Liang has over 20 years of experience in legal practice. She has assisted a great number of multinationals and domestic companies in providing labor law training, as well as drafting and revising employment contracts, employee handbooks, internal rules and policies, secondment agreements, and so forth. Ms. Liang also has tremendous experience in providing legal advice on employment relationships, trade unions, trade secret protections, non-compete agreements, collective bargaining agreements, salaries, social insurance, employee benefits, vacations and leaves, occupational health and production safety, and other relevant issues.
Li Chenkun
Associate
Regulatory & Compliance Group
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