The Paper reporter Tan Jun
The National Health and Health Commission issued an announcement on the evening of December 26, 2022, renaming the new type of coronavirus pneumonia as a new type of coronavirus infection. It is "Class B pipe".
According to several labor law experts, this will mean that from January 8, when infected with the new crown virus and unable to go to work, they will no longer enjoy normal wages, but the employer will pay "sick leave wages".
Some experts believe that changing the "full-paid sick leave" for COVID-19 infection to "normal sick leave" is conducive to the resumption of work and production of the whole society and the reduction of employment costs of enterprises, while also testing the management capabilities of enterprises.
"Fully paid sick leave" during Class B and A control will become a thing of the past
Previously infected with the new coronavirus and unable to enjoy normal wages during work, the main reason is that my country has adopted Class A infectious disease prevention and control measures against the new coronavirus infection.
The No. 1 Bulletin of 2020 issued by the National Health and Medical Commission, "Include pneumonia caused by the new coronavirus into the Class B infectious diseases stipulated in the "Law of the People's Republic of China on the Prevention and Control of Infectious Diseases", and adopt prevention and control measures for Class A infectious diseases."
According to the "Law on the Prevention and Control of Infectious Diseases", Class A infectious diseases refer to plague and cholera.
Class B infectious diseases include SARS, AIDS, viral hepatitis, schistosomiasis, malaria, etc.
Class C infectious diseases are influenza and the like.
Article 41 of the "Law on the Prevention and Control of Infectious Diseases" stipulates: For people in places where Class A infectious disease cases have occurred or in specific areas within the place... During the quarantine period, the people's government that implements the quarantine measures shall provide living security for the quarantined people ; If the quarantined personnel have a working unit, the unit shall not stop paying their work remuneration during the quarantine period.
In order to ensure that the employer pays normal labor remuneration during the isolation and treatment period of the new crown "Class B and A", the General Office of the Ministry of Human Resources and Social Security issued a document "Notice on Properly Handling Labor Relations During the Prevention and Control of Novel Coronavirus Infected Pneumonia Epidemic" ( Human Resources and Social Security Department Mingdian [2020] No. 5).
The document stipulates that “for patients, suspected patients, and close contacts of novel coronavirus infection during their isolation treatment or medical observation period, as well as enterprise employees who cannot provide normal work due to the government’s implementation of isolation measures or other emergency measures, the enterprise shall Employees shall be paid for their work during this period, and the labor contract shall not be terminated with employees in accordance with Articles 40 and 41 of the Labor Contract Law."
However, starting from January 8, 2023, after the implementation of Class B and B regulations on the new crown, the above measures will no longer apply.
"Therefore, the payment of wages during the infection period no longer applies to the People's Social Security Office's Invention News [2020] No. 5 and Article 41 of the "Law on the Prevention and Control of Infectious Diseases". If you cannot work during the infection period, it is a sick leave and normal sick leave wages are paid. "Introduced by Wang Xianyong, a professor at the School of Civil, Commercial and Economic Law of China University of Political Science and Law.
Yang Yongheng, an associate professor at Central South University of Forestry and Technology, also believes, "Generally speaking, after Class B and B control, government isolation measures or other emergency measures for patients, suspected patients, and close contacts of new coronavirus infection in the past will not be adopted in the future, so There is no basis for continuing to pay normal wages during the quarantine period in accordance with Article 41 of the "Law on the Prevention and Control of Infectious Diseases" and relevant documents from the Ministry of Human Resources and Social Security, and it is estimated that it is normal to switch to general sick leave."
Positive treatment sick leave does not go to work, at least 80% of the minimum wage standard can be paid
During the non-working period of the new crown infection treatment, the unit does not need to pay normal labor remuneration, so how to pay sick leave wages?
According to Yao Wenbin, a lawyer from Hunan Xiangda Law Firm, Article 59 of the "Opinions on Several Issues Concerning the Implementation of the Labor Law of the People's Republic of China" (Laobufa [1995] No. 309) stipulates: During the period of injury treatment, during the specified medical period, the enterprise shall pay the sick leave salary or disease relief fee according to the relevant regulations. The sick leave salary or disease relief fee may be lower than the local minimum wage standard, but not lower than 80% of the minimum wage standard.
The Paper noticed that the regulations on sick leave wages in various places are not consistent.
Taking Shanghai as an example, the calculation base of sick leave wages is the normal attendance monthly wage corresponding to the position of the employee, excluding year-end bonus, commuting allowance, working meal allowance, housing allowance, mid-night shift allowance, summer high temperature allowance, overtime wages, etc. Wages paid in exceptional circumstances.
The calculation base of sick leave wages shall not be lower than the minimum wage standard stipulated by this Municipality.
The specific payment standards are calculated differently according to the length of service and vacation time.
If the leave due to sickness is less than 6 months, if the working experience is less than 2 years, it will be calculated and paid according to 60% of the personal salary, and if the working experience is over 8 years, it will be calculated and paid according to 100% of the personal salary.
However, Yang Yongheng reminded that the calculation of sick leave wages is not legal wages, and it is not a direct and simple application of Article 59 of the Ministry of Labor’s [1995] No. 309 document, or the regulations on sick leave wages in various provinces, cities, and regions.
"Statutory standards are just a red line for the bottom line. If labor contracts or collective contracts or democratically formulated labor rules and regulations have sick leave wages that are more conducive to workers, the principle of prioritization to agreements should be followed. This is also in line with the labor law's rights and interests of workers The purpose of tilting protection should be encouraged and supported."
Yang Yongheng also introduced that not all groups of people are eligible for the same sick leave benefits as corporate employees.
Applicable to the staff of state organs and their affiliated institutions is the "Regulations on the Living Benefits of State Organ Staff During Sick Leave" (Guo Fa 1981) No. 52, "According to the regulations, state organ staff who take sick leave within two months , the original wages will be paid. The public institutions affiliated to the state organs shall apply this regulation by reference.”
How to take sick leave after infection, test the management level of the enterprise
In Yao Wenbin's view, the return to Category B management, and the payment of wages for people infected with the new crown according to normal sick leave will have a positive impact on enterprises and employees.
At the beginning of 2020, the All-China Federation of Trade Unions China Enterprise Confederation/China Entrepreneur Association All-China Federation of Industry and Commerce of the Ministry of Human Resources and Social Security issued the "Opinions on Stabilizing Labor Relations and Supporting Enterprises to Resume Work and Production During the Prevention and Control of Novel Coronavirus Pneumonia". The fourth paragraph of Article 3 stipulates that “During the delayed resumption of work affected by the epidemic or the period of non-return to work, for employees who have exhausted all kinds of leave and are still unable to provide normal labor or otherwise cannot provide normal labor, guide enterprises to refer to the national regulations on suspension of work, During the suspension of production, the relevant regulations on wage payment shall be negotiated with employees, and wages shall be paid according to the standards stipulated in the labor contract within one wage payment cycle; living expenses shall be paid according to relevant regulations if more than one wage payment cycle.”
"In the past, due to the epidemic situation, enterprises stopped production, and employees had to be paid normal wages within a month, and the minimum wage was paid a month later. It seems that employees enjoy 'full-paid sick leave', but in fact many companies are facing bankruptcy, and many employees are unemployed. Now Returning to Class B and B management, there is no suspension of work and production in the enterprise, and it is clear that employees who are infected will be paid according to normal sick leave. For the enterprise, the cost of employment is reduced. The enterprise resumes operation, and the employees return to work quickly after the sun is over, which is beneficial to the recovery of the overall economy. It is beneficial." Yao Wenbin said.
However, in Yao Wenbin's view, how to determine the wages of infected employees and sick leave is a test of the management level of the employer.
"Is it necessary to be positive to be able to ask for leave? Now the diagnosis is often delayed by one or two days, the speed of nucleic acid is not so fast, and the antigen is not 100% accurate. Yang is not positive, to what extent is positive, and there is no positive diagnosis, but there are new crown symptoms. Are employees granted sick leave?"
According to Yang Yongheng, the return of COVID-19 infection to Category B management means that all employees who cannot provide normal labor due to the epidemic will be treated as normal sick leave.
In fact, even if it is Class B and B control, the government still has the right to take certain control measures. For example, according to Articles 42 and 43 of the "Law on the Prevention and Control of Infectious Diseases", when a Class B infectious disease breaks out or spreads, the government can restrict or stop the market. Work, business, and classes may be suspended, theater performances, or other crowd-gathering activities may be suspended, places that may cause the spread of infectious diseases may be closed, epidemic areas may be declared, and health quarantine of personnel, materials, and vehicles entering and leaving the epidemic area may be implemented.
In addition, according to the "Guidelines for the Prevention and Control of Novel Coronavirus Infection in Key Groups, Key Institutions, and Key Places" "Class B and B Control"", positive personnel in key industries are not recommended to work with illness in principle, and staff in schools and preschool institutions have fever and dry cough. When you have symptoms such as fatigue, sore throat, etc., you are not allowed to work while sick (even if the positive individual has the physical conditions to complete the work).
"These may have an impact on the normal labor provided by workers. At this time, it is not a simple sick leave issue, but more consideration is given to factors such as force majeure and other factors that allow workers to be exempted from liability. Only for employees who need to ask for leave for medical treatment can they be considered on the basis of the rest advice issued by the hospital. Enterprise employees stipulate or agree to pay wages during the medical period. Of course, considering that enterprises also have practical difficulties, we encourage and support both employers and employees to negotiate on wages and working methods during the non-returning period, so as to help each other and overcome difficulties together." Yang Yongheng said.