Since the outbreak of the cluster epidemic in Xinfadi wholesale market, Beijing has quickly closed the management of key areas, and many measures have been taken to prevent the spread of the epidemic, such as home isolation, centralized isolation and peak-shifting resumption of work. While reducing the flow of people, it also achieved the purpose of effectively blocking the spread of the virus. At present, the epidemic situation directly related to the new land has been basically controlled, and the prevention and control work has achieved positive results. Then, how to calculate the wages of employees during the isolation period? This problem has become the focus of many employers and workers.
Scenario 1
How to pay the salary of the secret receiver?
Xiao Li, an employee of a company in Beijing, was unfortunately infected with COVID-19, so he needed isolation treatment and could not return to work. Xiao Qian, a colleague, was a close contact and needed medical observation because he was in the same office. During the isolation treatment and medical observation, how should the company pay Xiao Li and Xiao Qian’s salary according to the regulations?
■ The judge dispels doubts.
In order to clarify how to pay wages during the isolation period, government departments and judicial organs have issued a number of documents this year. For example, on January 31st, Beijing Municipal Bureau of Human Resources and Social Security issued the Notice on Further Improving the Work Related to Human Resources and Social Security in this Municipality during the Epidemic Prevention and Control Period (hereinafter referred to as the Notice); On April 27th, the Beijing Higher People’s Court and the Beijing Labor and Personnel Dispute Arbitration Commission jointly issued the Answer on the Legal Application of Labor Dispute Cases during the Prevention and Control of Pneumonia in novel coronavirus (hereinafter referred to as the Answer).
According to the "Notice", enterprises should treat patients, suspected patients and close contacts infected with pneumonia in novel coronavirus as if they were unable to provide normal labor during their isolation treatment or medical observation, as well as employees who were unable to provide normal labor due to the government’s isolation measures or other emergency measures, and pay their wages, and may not terminate their labor relations. It can be seen that during Xiao Li’s isolation treatment and Xiao Qian’s medical observation, the company should pay their wages normally according to the regulations, and shall not deduct their wages without authorization.
In addition, the "Answer" made further provisions on the issue of wage payment during this period. Article 10 stipulates that: during this period, the employer shall pay according to the fixed components such as basic salary and post salary, and may not pay the non-fixed components such as performance, bonus, commission, and other payments related to actual attendance, but it shall not be lower than the minimum wage standard of this Municipality. Therefore, according to the actual working conditions of workers and the actual operation of employers, the company can flexibly grasp the above salary composition of Xiao Li and Xiao Qian under the premise of not being lower than the minimum wage standard in this city. If Xiao Li and Xiao Qian are absent due to isolation, the car and meal supplements related to actual attendance may not be distributed.
Scenario 2
How to pay for home office?
Xiao Zhao is a financial officer of a company, responsible for specific matters such as salary payment and expense reimbursement. In order not to delay the normal operation of the company, he has been working remotely through the network during the period of home isolation observation. At this time, what is special about Xiao Zhao’s salary payment?
■ The judge dispels doubts.
According to the "Notice", if an enterprise requires employees to work from home through flexible means such as internet and telephone, they should be paid according to the salary income during normal work. At the same time, according to Article 10 of the Answer, if the employer arranges close contacts to work flexibly during medical observation, it shall pay labor remuneration according to the normal attendance of workers. At this time, based on the nature of Xiao Zhao’s work, he adopted the way of network telecommuting to ensure the normal financial operation of the company, so the company should pay Xiao Zhao’s salary according to normal attendance.
Scenario 3
How to pay wages that can’t provide labor normally?
At present, the situation of epidemic prevention and control in Beijing is still grim. During the period of delayed return to work or not, many employees can’t work as usual when they are isolated at home, such as full-time drivers and restaurant waiters. How can the company pay the wages of workers who can’t provide labor normally like this?
■ The judge dispels doubts.
This scenario should be considered comprehensively according to the actual situation. If the company reasonably arranges for workers to give priority to various holidays such as paid annual leave (including self-designed welfare leave) and comprehensively adjust the use of rest days in 2020, it shall pay labor remuneration according to relevant holiday regulations or normal attendance of workers. Of course, if the company and the laborer reach an agreement on the wage standard through consultation, they can pay the labor remuneration according to the adjusted standard through consultation, but the adjusted wage standard shall not be lower than the minimum wage standard in this city.
If the company has not arranged for the workers to use all kinds of holidays, nor has it negotiated with the workers on the issue of wages, the company shall judge the standard of paying wages and remuneration according to the comprehensive situation such as the length of time the workers have not returned to work. If the time for not returning to work is relatively short (generally not more than one month), the company shall pay according to the fixed components such as basic salary and post salary in the workers’ normal working period, and may not pay the non-fixed components such as performance, bonus, commission and other payments related to actual attendance, but it shall not be lower than the minimum wage standard of this Municipality. If the company fails to return to work for a long time, the company can pay the wages to the workers according to Article 27 of the Regulations on Wage Payment in Beijing, that is, pay the basic living expenses of the workers at least 70% of the minimum wage in Beijing.
Scenario 4
How to pay the wages that still need to be stopped for treatment after the isolation?
Xiao Li still needs to continue treatment after isolation treatment. How should the company pay Xiao Li’s salary at this time?
■ The judge dispels doubts.
According to Article 11 of the Answer, if a worker still needs to stop working and continue treatment after the isolation treatment (whether he is diagnosed with novel coronavirus or not), he shall pay sick pay according to the relevant provisions of the medical treatment period, and the payment standard of sick pay shall be implemented according to Article 21 of the Regulations on Payment of Wages in Beijing, that is, he shall pay sick pay at least 80% of the minimum wage in Beijing. However, if a worker is recognized as a work-related injury according to law, it shall be handled in accordance with the relevant provisions of the Regulations on Work-related Injury Insurance.
Finally, it should be pointed out that from a realistic point of view, the epidemic has objectively impacted the production and operation of many employers, and workers are also facing risks such as waiting for jobs and reducing their income. It is suggested that both sides can help each other in the same boat and overcome the difficulties together, and solve the salary adjustment, rotation and rest and other labor and employment problems through consultation. As an employer, in the case that the situation of epidemic prevention and control is still grim, we should consider the long-term development of the unit and give consideration to the resumption of work and the protection of workers’ rights and interests; As a laborer, we should also consider problems from the overall situation, properly and rationally express reasonable demands, and realize the benign and sustainable development of labor relations.
(Author: Beijing No.1 Intermediate People’s Court)