Q1. What if the employer offered a job to the employee before the Chinese Spring Festival holiday and agreed on that the employee would commence work after the holiday, but the employee was unable to start as scheduled due to Covid-19? When was the actual
The employment relationship shall be
established as of the employee’s actual start date. However,
If the employer has assigned work to the employee in a flexible way, the date
when the employee starts to work shall be the date of the starting time of the employment
A judge from Chaoyang district court in
Beijing has declared that if the employer has already sent the offer letter to
the employee, then the offer cannot be withdrawn unilaterally by the employer
only by reason of Covid-19, otherwise the liability of fault in conclusion of a
contract might be incurred. Based on the above answer, if the employer has
previously agreed on the starting time but is unable to arrange the commencement
of the contract due to Covid-19, the employer can first arrange the work in a flexible
way, or suspend the arrangement for commencing the employment. It is noted that
when the actual employment starts, the labour relationship starts
Q2. If the employer is unable to sign or renew the written employment contract with the employee due to the pandemic, is the employee entitled to demand double wage payments for the employer’s failure to conclude a written employment contract?
If the employer can provide evidence that he/she
has proposed to conclude or renew the contract, but it is objectively unable to
do so due to the impact of Covid-19, then the demand for double wage payments
from the employee shall not be supported.
The Labour Contract Law of the PRC has
stipulated that the employer shall pay double wage if he/she fails to conclude a
written labour contract after the lapse of more than one month when the actual
employment relationship starts. However, given the pandemic is an unpredictable
circumstance which makes it more difficult to conclude the contract in the
traditional way, it is not appropriate to impose the penalty on the employer if
he/she doesn’t have malicious intent.
But still, we recommend the company should
pay attention to keep the relevant evidence to avoid being invoked by the
Also, the employer and the employee may
mutually agree to execute a written employment contract in electronic form
according to the relevant law. We would recommend the employer select a
professional service institution with the qualification of electronic signature
service recognized by the authority to ensure that the content of the
electronic contract signed with the electronic signature is complete, accurate
and not tampered with.
Q3. What if an employee is confirmed or suspected of having Covid-19, infected but asymptomatic, or has come into close contact with a confirmed or suspected patient, how should the employee be paid during the pandemic?
The employer may choose not to pay the
non-fixed portion of the wage, for instance, the performance-based
compensation, bonuses and commission, and transportation/meal subsidies.
However, the base salary and other guaranteed portions of the normal wage shall
be paid up.
The arrangement above is a good balance
between protecting the benefits of employers and the employees since the
employers are also going through a difficult period economically.
Q4. If the employer is not willing to return to work after the company has officially and legally gone back to the normal operation, is the employer entitled to terminate the labour contract?
Yes, the employer may terminate the
employment contract according to the labour law if the employer can prove that
the employee refuses to return after being urged or persuaded, with no proper reasons.
Given the special background of the
pandemic, we would recommend that employers should firstly understand the real
reasons behind the refusal, take efforts to persuade the employee, and preserve
We will continue to keep track of the changes
of relevant policies and give feedback to you. If you need further information,
please do not hesitate to contact our Asia team: Joost Vrancken Peeters at
+31620210657 or firstname.lastname@example.org or Ye Yu at +31639267995 or email@example.com.