Legal update: COVID-19 and return to work in Greater China

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 By Matthew Durham, partner, Simmons & Simmons Shanghai

As global markets continue to grapple with the socio-economic threat of COVID-19 with varying degrees of lockdown in place across the world, some Asian economies have gradually been returning to work. In mainland China this process is by no means complete or uniform, but it reflects the government’s resolve to stimulate the economy and resume business and production as far as possible. This transition comes with a number of thought-through considerations that have been employed to limit the spread of infection.

Technically, companies have been permitted to resume operations since mid-February, subject to obtaining ‘work resumption approval’ from local authorities and the blanket implementation of a range of precautionary measures. These measures included: restricting staff attendance to 50%; checking employees’ temperatures at regular intervals; providing work spaces of at least 2.5 square meters; ensuring social distancing of at least one metre; frequent cleaning and disinfecting of company premises; restrictions on employees eating together; reduced maximum capacity in elevators along with individually marked standing areas; and use of facemasks.

Companies were also obliged to refer employees with temperatures or symptoms to medical authorities, but with no general obligation to record temperatures.

Today, the resumption pre-approval is no longer required, but exact requirements and practices vary from city to city. Many building management companies have implemented their own protocols such as entry and exit via separate channels, compulsory temperature checks and checking individuals’ status on government approved ‘health code’ apps operated by WeChat or Alipay which track health and travel details.

While many requirements have been relaxed, some companies continue to implement precautionary measures or higher standards as matter of internal practice or global policy. For example, some employers require that staff wear facemasks in the office or during face-to-face meetings, even though this is not a formal requirement (except on public transport and in crowded areas).

Domestic travel is now possible again, although business travel and meetings are generally discouraged. Some companies require employees to submit to health checks or to disclose health, family and travel information before returning to work, which leads to concerns about privacy issues which must be addressed appropriately.

The rate of ‘return to work’ has also varied across sectors and circumstances. Some companies are continuing to allow staff to work from home. In principle, employees cannot refuse to return to work, although in some cases it is difficult or impossible for employees to do so – such as, childcare related issues or the continued closure of Chinese borders (except for limited exceptions) preventing foreign nationals from returning. Testing and quarantine arrangements are almost certain to apply even when the borders re-open.

Some employees have expressed anxiety or concerns regarding commuting and being back in the workplace. Companies must plan ahead carefully and consider their specific business needs before resumption. Clear and consistent communications are essential and we recommend taking a mindful approach to specific cases.

In Hong Kong, no formal lockdown was ever implemented although a broad social distancing policy was introduced. The government encouraged the private sector to allow flexible working arrangements and many companies adopted a work from home system. As data suggests that the situation is easing, employees are gradually returning to the workplace.

To comply with the duty of reasonable care in terms of workplace health and safety, companies are advised to implement protocols and precautions similar to those outlined above, including split teams and flexible working hours (to allow non-peak commuting). There is no obligation to provide facemasks in the workplace, although this would reinforce the company’s position on duty of care given the relatively low cost and general availability of masks.

These protocols and precautions for return to work are not just important for companies operating in the Greater China region but also provide a reference point for global peers as they move towards exiting lockdowns in their respective jurisdictions.