The Impact of SARS: Guidance for Employers in the PRC

Obligation to Provide a Safe and Clean Workplace

Under the PRC Labour Law(中华人民共和国劳动法), employers are obliged to establish a comprehensive labour safety and hygiene system. This includes the provision of a safe and clean place of work and the provision of any necessary protective measures.

Although government measures to control and prevent SARS have not been targeted specifically at employers, the Shanghai Municipality issued the Notice of the Shanghai Government Concerning Every Level of Government Organizations Taking the Lead in Implementing All Types of Anti-SARS Measures. This notice requested all subordinate departments to implement preventive measures to contain the spread of the virus. By extension, several points are relevant to an employer's obligation to provide a safe and clean workplace environment, and can be grouped in two main areas: internal management and restrictions on activities or travel.

Internal Management

¡P Clean and disinfect the workplace;

¡P Provide good ventilation in the workplace;

¡P Ensure all staff wear masks when on duty;

¡P Provide antiseptic soap in toilets;

¡P Implement strict control of outside visitors; and

¡P Encourage the use of telephone, facsimile or other modes of communication for daily work interaction.

Restrictions on Holding Large-scale Activities or Travel

¡P Postpone or cancel any upcoming large-scale events;

¡P Strictly control the scale of conferences;

¡P Encourage the use of teleconferences or videoconferencing; and

¡P Suspend any external conferences, travel or inspection activities.

Similarly, Beijing Municipality promulgated the Decision of the Beijing Municipal People's Government on Strengthening Prevention and Control of SARS. The decision lists 10 anti-SARS measures for all districts, departments and entities in Beijing, of which the following four measures are of particular relevance to employers:

¡P Sterilize public areas and work places;

¡P Do not organize large-scale activities;

¡P Do not organize external conferences; and

¡P Cancel unnecessary business trips.

Obligation to Report Illness

The PRC Infectious Diseases Prevention and Control Law obliges all persons to report cases of contagious disease. By decree, the Ministry of Health has added atypical pneumonia to the list of contagious diseases. Citizens are encouraged to report anyone who has had previous contact with a SARS-infected person or who has recently returned from an infected area.

In Shanghai, according to the SARS Prevention Announcement No. 2: Medical Observation for Those Returning to Shanghai from SARS Epidemic Areas (Announcement), effective May 8 2003, construction sites and other work units that operate staff dormitories are obliged to provide daily reports on personnel from outside Shanghai to the local level supervisory authority. Persons who report actual SARS cases are eligible for a reward from the authorities.

In Beijing, according to the recent Quarantine of Key Areas with SARS Circular (the Circular), patients infected with SARS, people suspected of having SARS and those in close contact with either group will be quarantined. Health administration departments at the municipal, district and county level are given the power to determine and implement quarantine orders.

Under both the Announcement and the Circular, compulsory means, including criminal prosecution, may be taken against those who refuse to comply. By extension, employers should report cases or suspected cases of SARS to the nearest district or provincial disease control centre or designated hospital.

Obligation to Pay Salary and Benefits

The Announcement mandates that anyone arriving in Shanghai with a fever or other SARS symptoms will be quarantined. Visitors to Shanghai who do not exhibit SARS-related symptoms upon arrival from a SARS-affected area must have their temperature taken twice daily and maintain a log of their whereabouts within the city. The definition of a "SARS-affected area" is unclear as of the writing of this article, but may be interpreted to include countries with relatively few SARS cases. All Shanghai residents returning to Shanghai from a SARS-affected area (including foreign residents) must be isolated for two weeks by the local level SARS prevention authorities.

The question then arises as to whether an employer must continue to pay employees for such a period of absence. Based on directives from the Shanghai government, an employer must pay full compensation to employees for the quarantine period where:

(i) an employee is quarantined or under medical observation as a result of close contact with a SARS-infected person or with a person who is suspected to have SARS, and the employee is later confirmed not to have SARS; or

(ii) an employee was required to travel to a SARS-affected area for business, and upon return, the employee was quarantined for 14 days and later was confirmed not to have SARS.

Based on directives from the Beijing government and the Beijing Municipal Labour and Social Security Bureau, employers in Beijing are also liable for the full salary and benefits of employees quarantined or placed under medical observation for suspicion of SARS and subsequently confirmed not to have SARS. Likewise, employers cannot punish employees who refuse to travel to a SARS-affected area, as that travel would violate the general directives against travel to infected areas. The Beijing Municipal Bureau of Finance has also issued the Relevant Issues Concerning Medical Fees for SARS Patients, which stipulates that fees for SARS-related medical services incurred by employees without medical insurance are to be paid by the employer.

Work Slowdowns or Work Stoppages

An employer cannot terminate employment contracts under circumstances where SARS has caused a reduction in business or has caused operations to come to a halt, or during periods in which employees are quarantined because they are confirmed to have, or suspected of having, SARS. Further, if an employment contract expires during a term of quarantine, the contract must be extended for the duration of the quarantine period. A notice issued by the General Office of the Ministry of Labour and Social Security in May allows employers to adopt a more flexible work schedule, and sets the minimum pay an employer must pay in these circumstances. Where an employer stops operations as a result of SARS, it must pay employees the wage stipulated in the contract if the work stoppage period is less than a single pay period in the labour contract. If the work stoppage period is longer than a single pay period and the employee continues to provide labour services, compensation from the employer is owed and cannot be less than the minimum wage for that type of labour. Where the employee does not continue to provide services, he or she is still entitled to a payment to cover living costs.

Employees Subject to Quarantine

The Ministry of Health issued the Standards and Principles to Determine and Deal with Those Exposed to Contagious Atypical Pneumonia on May 8 2003. Pursuant to these regulations an employee will be subject to quarantine if, under any of the following circumstances, he or she has sustained close contact with a SARS-infected person or with a person suspected to have SARS within three days prior to such person exhibiting symptoms:

¡P The employee shared a residence;

¡P The employee shared a place of work;

¡P The employee shared a meal;

¡P The employee took the person to a hospital to seek medical advice or visited the person in the hospital; or

¡P The employee knows that he or she has otherwise had contact with such a person.

If the SARS-infected person or the person suspected to have SARS already exhibited symptoms at the time of contact with the employee, then the employee is subject to group quarantine as determined by relevant agencies. If the SARS-infected person or the person suspected to have SARS had not yet developed symptoms at the time of contact with the employee, then the employee may be quarantined at home. The quarantine period should not be counted against the employee's normal sick leave allowance.

Recommended Actions

A number of actions may be considered to address the obligations identified above:

¡P Adopt preventive measures to clean and disinfect the workplace, provide good ventilation and antiseptic soap in washrooms, communicate these preventive measures to employees and post the measures on the company intranet, staff room or canteen;

¡P Issue guidelines to employees on the maintenance of personal and workplace hygiene and on other preventive measures, such as avoiding crowded public areas, and post the guidelines on the company intranet, staff room or canteen;

¡P Postpone large scale activities, conferences and other functions until after the situation has stabilized;

¡P Temporarily suspend non-essential business travel to non-affected areas and temporarily prohibit all travel to infected areas;

¡P Require employees returning to work after an absence from the workplace to report their whereabouts during the previous 14 days, whether or not they have had contact with infected persons or have fever or other symptoms;

¡P Promptly report to the nearest district or provincial disease control centre or designated hospital any cases of employees coming into contact with infected persons or persons suspected of being infected, and any cases of employees having travelled from an infected area within the past 14 days; and

¡P Adopt a policy to allow employees to wear masks at work, encourage employees to wear masks when going to public places or meeting persons outside of the workplace and provide masks to employees free of charge.

Employers can also implement procedures to check the temperatures of visitors and employees returning after an absence, maintain a visitors log and restrict visitors to certain designated areas within the workplace.

Long-term Impact of SARS on Employer Obligations

The past several months have seen a number of major legislative developments in the employment arena, which have expanded employees' rights and increased employers' obligations. In November 2002, the Safe Production Law became effective. This law sets out comprehensive safety measures that must be implemented by employers that engage in production and operations, and mandates employers to set up safety departments and provide training. In addition, employees who complain to the authorities about safety violations are protected from reprisals, and trade unions are granted a significant role in safety violation investigations. Further, the Safe Production Law imposes monetary penalties on employers and possible criminal sanctions against persons responsible for serious violations. The Safe Production Law was issued in part as a response to the increasingly vocal concerns about substandard operations in the construction and mining industries and the impact on employees in these industries.

Just a short time later, SARS hit China. What is striking about the spread of SARS in China, and what has conditioned the directives issued to employers, is that SARS appears to have spread quickly not as a result of substandard workplace environments, but from a high concentration of animals and people in crowded areas. SARS has forced the government to include employers among those that should be held responsible for not only preventing the spread of the disease, but also for bearing the burden if SARS is detected in the workplace. SARS, like recent disasters in mining and construction, is forcing the government to set ever higher standards on employers to meet the obligations of providing a safe and clean work environment. Today there are no mandatory requirements on employers to implement occupational safety and health management system in the work place. One can only expect to see, then, more mandatory comprehensive measures and clearer standards put into place in the wake of SARS that relate to the broader notions of hygiene and cleanliness in the workplace.

So what does this mean? Hopefully that employees will enjoy cleaner and healthier work places. Also, what it most certainly means is that employers can expect more disputes and litigation, as employees hold employers accountable for failure to meet the various obligations increasingly imposed on employers. The balance that must be struck is between allocating responsibility so that those affected can act responsibly, and doing so without hampering the efficient operations of the workplace. Whether this leads China to become a more litigious society remains to be seen.

The author would like to thank Helen Chan and Brad Herrold for their assistance in preparing this article.