Employers’ general obligations under state laws and government guidance
Employers are obligated to disclose employees’ health status to government disease control agencies. Specifically, Chinese companies must report promptly to the local disease control authorities or medical institutions if a confirmed or suspected COVID-19 case is identified.1 The company must not conceal, delay the mandatory reporting of, or lie about any COVID-19 related cases.2
On February 8, 2020, the State Council issued the “Notice on Effectively Strengthening Scientific Prevention and Control of Epidemics and Orderly Resumption of Work and Production in Enterprises,” requiring companies to implement disease control and prevention measures based on the nature and characteristics of their business operations before they resume business.3
Subsequently on February 21, 2020, the State Council issued “Guidance on Prevention and Control Measures for the Resumption of Work and Production in Enterprises and Institutions,” providing more detailed requirements for employers. These requirements include, among others, that employers strengthen employee health monitoring, improve workplace health and safety, and provide guidance and training on personal protection to employees. In addition, if an employee shows any symptoms of COVID-19, such as a dry cough or fever, the employer must report the suspected case to the local disease control authorities promptly and implement appropriate preventive and containment measures.4
On February 13 and 15, the National Health Commission’s Department of Occupational Health issued its “Strategy for Company’s Control and Prevention of COVID-19,”5 listing the following measures for the control and prevention of COVID-19 as preconditions for a company’s business resumption and continued operation:
- Establish an Employee Health Card System6 to collect employees’ recent travel information. Employees who have visited places seriously affected by COVID-19 should self-quarantine at home for 14 days.
- Provide training on the prevention and control of COVID-19, for example, via WeChat7 groups or by providing information on the company’s website.
- Reduce employees’ contact with visitors. The company should monitor visitors’ body temperatures and require visitors to register before entering its premises.
- Make available all necessary over-the-counter medicines and personal protective equipment, such as face masks and hand sanitizers, for the prevention of COVID-19.
- Keep the company’s premises well ventilated. Companies should open the door or windows if the company’s air conditioning system is a non-fresh-air fan coil system. If the air conditioning system is an HVAC system, the returned air valve should be closed; and the fresh air ventilation system should be turned on for at least one hour after the closing of business on a daily basis to ensure that the indoor air is fresh. The opening of the fresh air ducts and other parts of the air conditioning system must be sanitized to avoid contamination in accordance with the standards set forth in “National standards for cleaning and sanitizing central air conditioning system for public places.” If the company cannot ascertain the type of air conditioning system or how it produces air, or, if there is any suspected or confirmed case within the company premise, the company should cease using the air conditioning system in question.8
- Remind employees of the need for frequent hand-washing.
- Disinfect elevators, cafeterias, restrooms and other public areas on a daily basis.
- Clean employees’ work uniforms (if applicable) on a daily basis.
- Keep the workplace clean by, for example, emptying the garbage bins on a daily basis and conducting pest control.
- Reduce the frequency of employee gatherings; reduce group activities among employees.
- Monitor employees’ body temperatures, with the body temperature of those in self-quarantine monitored twice a day. Companies must also monitor other employees’ body temperatures each time they enter the workplace; this can be performed by facility managers. HR should continue to monitor any suspected cases of infection and the health status of absent employees, and report confirmed cases to the local disease control authorities or health care institutions,9 as well as complying with quarantine measures for confirmed cases and issuing an alert to other employees while also protecting the privacy of affected employees.10
- HR should keep abreast of national and local regulations and comply with government guidance on emergency response, assist companies and employees with disease control and other health and safety measures, and cooperate with the government with respect to investigation, testing, sampling, the collection of financial, material or human resources for disease control, quarantine measures, and other public health initiatives.11 Noncompliance with government directives and emergency measures could result in criminal or civil liabilities.12
On April 7, the PRC State Council released further guidance on the resumption of business activities, encouraging companies located in low-risk areas to resume normal business operations, and requiring companies in high-risk areas to resume business operations while observing COVID-19 disease control and prevention measures in accordance with local government guidelines.13
Local government guidance on employers’ obligations
Local governments have also provided guidelines to employers on work resumption and maintenance of health and safety measures in the workplace. For example, on February 28, the Shanghai government updated the Shanghai Guidance on Resumption of Work (Shanghai Guidance). In addition to emphasizing the requirements of the State Council, the Shanghai Guidance also requires employers to submit company information and upload a “prevention and control plan” on the one-stop online government services platform (zwdt.sh.gov.cn), and confirm that COVID-19 prevention and control measures have been put in place before the company resumes operations.14
On March 18, the Beijing Municipal Commission of Housing and Urban-Rural Development issued guidance to the construction industry on the resumption of work, requiring employers to conduct temperature monitoring of any new employees no less than 14 days in advance of their onboarding and accurately recording every employee’s home address and health status.15 On April 29, the local authorities lifted the 14-day self-quarantine requirement for people traveling to Beijing from a low-risk area, while still requiring people coming from Hubei or abroad to complete the mandatory 14-day self-quarantine at their own residences.16
The Shenzhen government also requires businesses to report their status in relation to the resumption of business activities.17 The local government still requires businesses with employees coming from high- and medium-risk areas and abroad to strictly comply with local health management provisions. For businesses at a lower risk, the local government does not impose a mandatory self-quarantine requirement for employees returning to the city, as long as the employer ensures that employees are only permitted to gain access to the company’s premises if they have normal body temperatures.18
Employees who return to work from abroad or other cities in China
In addition to domestic employees, given the seriousness of the COVID-19 outbreak outside of China, employers are also required to pay close attention to employees who return to work from abroad. Multiple provinces and municipalities in China have issued notices requiring that people coming to China from high-risk countries self-quarantine for 14 days.
Although most of the quarantine restrictions have been lifted for individuals traveling domestically in China, local government mandates concerning travel restrictions continue to be based on the daily monitoring of confirmed cases by the local government. For example, Beijing has just lifted its 14-day self-quarantine requirement for those who travel to the city, albeit this requirement has been revised a few times for disease control purposes, while the requirement to present a “green” health certificate when checking into hotels in Beijing remains in effect.19 As a temporary measure, no foreign nationals, even those who already have a valid visa or work permit, may enter China from abroad until further notice. The specific travel restrictions in certain major cities are as follows:
- Beijing: Since March 16, 2020, all Chinese nationals coming to China from a foreign country are required to self-quarantine at a designated location for 14 days. The person subject to the self-quarantine requirement is responsible for the costs and expenses incurred during the period of quarantine.20 The Beijing municipal government has since downgraded the public health emergency status of COVID-19 and upon check-in hotel guests are no longer required to present a health certificate confirming a negative test for COVID-19.
- Shanghai: All Chinese nationals coming to China from a foreign country must self-quarantine for 14 days at a designated location or at home.21 Those who are required to self-quarantine at a location designated by the government should bear the costs and expenses incurred during the quarantine period.
- Tianjin: All individuals who have traveled in a high-risk country within 14 days prior to coming to China must self-quarantine for 14 days. Individuals who have a residence in China must self-quarantine at home, while those who do not have a residence in China must self-quarantine at a designated hotel.22
- Qingdao: Since February 24, 2020, all Chinese nationals returning to China from a foreign country are required to self-quarantine for 14 days, and no foreign nationals may enter China irrespective of whether they possess a valid visa or a resident or work permit. Individuals who have a residence in China must self-quarantine at home, while those who do not have a residence in China must self-quarantine at a designated hotel.23
Penalties and enforcement
If a company fails to comply with the requirements issued by the State Council and local governments related to COVID-19 in connection with a resumption of work,24 it may be sanctioned with a warning or a fine of up to RMB 200 (approximately $33). If the case is egregious, the senior manager responsible may be detained for five to 10 days, and may also be fined up to RMB 500 (approximately $83).25
For example, on February 1, the Public Security Bureau of Tongzhou District, Nantong City, Jiangsu Province found that three employees, had resumed work at a textile factory before work restrictions had been lifted, at the behest of Yu, who was in charge of the plant. Yu knew that there was a notice from the provincial government of Jiangsu prohibiting the resumption of work from the extended Chinese New Year holidays to February 9, 2020, but Yu still required some workers to resume work. Yu was held liable for violating the “Notice of the General Office of the People's Government of Jiangsu Province on Delaying the Resumption of Enterprises” issued by the Jiangsu provincial government and was sentenced to five days’ detention by the Tongzhou District Public Security Bureau.26 While the Chinese government now encourages resumption of work given that the outbreak is under control, governments at the state, provincial and local levels continue to monitor the situation and issue directives as necessary. It is imperative for employers to be aware of these local rules, particularly because some of the new directives may supersede previously issued guidelines depending on the current status of the pandemic, which is still constantly evolving.
Employers’ data protection obligations for teleworking
As the Chinese government continues to encourage companies to actively implement workplace safety measures, such as staggering work shifts and implementing flexible working arrangements such as teleworking,27 governments at various levels have issued directives on data protection in light of the heightened risk of hacker attacks at this time. Companies are advised to strengthen the security of their online systems, impose strict rules for employees’ remote access to the company’s databases, and proactively mitigate the risk of data breaches or hacker attacks.
Moreover, with respect to HR data, the central government has issued a national directive on employers’ obligations with respect to the collection, use, and protection of employees’ personal information during the outbreak. While companies are allowed to collect information concerning employees’ travel history and health status, only authorized government agencies may collect personal information without consent. Secondly, the scope of data collection and use must be minimized. Personal information collected for the purpose of disease control must not be used for any other purposes, and companies must not collect any data that is beyond the scope of what is necessary for disease control, or disclose employees’ or visitors’ personal information such as biometric information, information on employees’ ethnicity, political opinions, or religious beliefs, or any other sensitive information, without their consent, unless the disclosure is necessary to cooperate in the government’s disease control and prevention efforts.28 In addition, any entities or individuals may report to the police or the Cyberspace Administration of China if they notice any illegal activities concerning the collection, use, retention or disclosure of personal information.29
The COVID-19 pandemic continues to present challenges to companies and impose new regulatory requirements with respect to workplace health and safety, cybersecurity and the protection of privacy, and employment-related issues. Companies are advised to adhere to specific government announcements or directives, and pay close attention to any updates to these requirements. We expect the Chinese government to release more rules and policies relating to how businesses should operate, and manage and protect their workforce.
The Bureau of Disease Prevention and Control of the National Health Commission stated in a press conference in February that if a company fails to identify suspected or confirmed cases early after resuming normal operations, which then leads to a spread of the disease at company premises, the government may implement certain measures to address the problem, including but not limited to mandating the company to shut down its operations. To the extent possible, companies are recommended to adopt measures to ensure social distancing in the workplace so as to minimize the potential spread of COVID-19 within company premises. In addition, if a company becomes aware or suspects that an employee is or might be infected with COVID-19, it must promptly report the matter to the local disease control center.
Further, companies are encouraged to develop policies and provide training to all of their employees relating to the prevention and control of COVID-19 to ensure that health and safety measures are implemented and enforced. Companies should also provide sufficient personal protective equipment and updated information to ensure that employees can continue to comply with government disease control requirements and adhere to recommendations from qualified public health professionals.
Our Reed Smith Coronavirus team includes multidisciplinary lawyers from Asia, EME and the United States who stand ready to advise you on the issues above or others you may face related to COVID-19.
- Infectious Diseases Law (June 29, 2013), art. 31.
- Regulation on Responses to Public Health Emergencies (2011 Revision) (January 8, 2011), art. 21.
- Notice on Effectively Strengthening Scientific Prevention and Control of Epidemics and Orderly Resumption of Work and Production in Enterprises (February 8, 2020), art. 5.
- Guidance on Prevention and Control Measures for the Resumption of Work and Production in Enterprises and Institutions (February 21, 2020), section 1.2.
- Strategy for Company’s Control and Prevention of COVID-19 (Phase One) (February 13, 2020); Strategy for Company’s Control and Prevention of COVID-19 (Phase Two) (February 15, 2020).
- The Employee Health Card System uses a questionnaire to collect information on employees’ health status by requesting that employees disclose personal information such as their travel history and any records of self-isolation and body temperature measurements.
- WeChat is the most widely used social media app in China.
- See National Standard for the Operation and Management of Air Conditioning Systems (GB50365-2019); Guidance on Operation and Management of Air Conditioning Systems for Office Premises and Public Places During COVID-19 (February 12, 2020).
- Infra note 12, art. 39; supra note 2 (mandating that any entity or individual may not conceal or delay the mandatory reporting of an emergency situation, or authorize others to conceal or delay reporting information regarding an emergency situation); supra note 1.
- Infra note 12, art. 56; supra note 2, art. 36.
- Supra note 1, art. 45.
- Emergency Response Law (November 1, 2007), art. 65.
- Notice of State Council on Resumption of Business in Various Areas with Different Risk Levels Under COVID-19 Prevention and Control Measures (April 7, 2020).
- Shanghai Guidance on Resumption of Work (February 28, 2020), section 1.
- Beijing Guidance on Resumption of Operations at Construction Sites (March 18, 2020), section 1.
- “Beijing: No Mandatory 14-Day Quarantine Requirement for People from Low Risk Areas Returning to Beijing” (April 29, 2020).
- Shenzhen Guidelines on Resumption of Businesses (February 6, 2020).
- Shenzhen Guideline on Resumption of Businesses in Low Risk Areas (April 10).
- “Beijing Switches to a Lower Level of Emergency Response – No Mandatory 14-Day Quarantine Requirement for People from Low Risk Areas Returning to Beijing” (May 3, 2020).
- Qiyao Li, “In Future, all Individuals Entering Beijing from Overseas will be Separated and Observed for 14 Days,” Beijing Daily (March 16, 2020).
- Shanghai Government, Strictly Preventing Infection from Overseas: All People Entering Shanghai with a History of Travel to Specific Countries and Regions will be Quarantined for 14 Days (March 4, 2020).
- Wenjing Zhang, “Lu Zhang, Chinese and Foreign Nationals Entering Tianjin Quarantined for 14 Days,” Tianjin Daily (March 6, 2020).
- Yu Yu, “Provisions on the Isolation of Foreign Nationals Coming to Qingdao,” Bendibao (February 25, 2020).
- “Resumption of work,” as mentioned in this client alert and national and local government guidelines, refers to the resumption of normal operations, whereby employees perform their work duties at companies’ premises or work from home. See Opinions on Stabilizing Employment Relationship and Supporting Resumption of Business during Preventing and Controlling COVID-19, (February 7, 2020).
- Public Security Administration Punishment Law of the People’s Republic of China (January 1, 2018), art. 50.
- Bin Liang, “First Case in the Country! Returned to Work Early and Detained for 5 Days,” Finance Sina (February 4, 2020).
- Beijing: Notice on Measures for the Prevention and Control of COVID-19 and Ensuring the Orderly Resumption of Businesses (March 16, 2020).
- See supra note 5, Strategy for Company’s Control and Prevention of COVID-19 (Phase Two) (February 15, 2020); Information Security Technology – Personal Information Security Specification (May 1, 2018); Online Personal Information Security Guidelines (April 10, 2019).
- Notice on Protection of Personal Information and Prevention and Control of COVID-19 via Big Data Analysis (February 4, 2020).
Client Alert 2020-302