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Coronavirus – Key Considerations for Employers in Asia Pacific (update as of March 2020)

24 March 2020

Below information is correct as of 20 March 2020.

1. CAN THE EMPLOYER ORDER AN EMPLOYEE WHO VISITED A REGION / COUNTRY EXPOSED TO CORONAVIRUS INFECTION TO TAKE ADDITIONAL MEDICAL EXAMINATIONS?

CHINA

The employer cannot order an employee who visited a region/country exposed to Coronavirus infection to take additional medical examination. However, if the employer finds out that an employee is a patient or is suspected to be a patient, the employer is obliged to promptly report to the nearby virus prevention and control administrative authority or medical institute, which can take quarantine measures on the employee and force the employee to take medical examinations.

HONG KONG SAR

Employers cannot force their employees to take additional medical examinations.

However, employees who visited a region/country exposed to coronavirus infection may already be subject to compulsory quarantine and/or medical surveillance imposed by Hong Kong Government as elaborated in Question 2 below. For those who are not subject to government’s compulsory quarantine and/or medical surveillance, but who may still be considered having a health risk due to their travel or contact history, employers can encourage them to: monitor their own health condition and consult and inform their doctor of any recent travel history and exposure to animals if experiencing a fever or other symptoms, and wearing a surgical mask to help prevent spread of the disease.

SINGAPORE

There is no express power granted to an employer to order an employee who visited a region / country exposed to coronavirus infection to take additional medical examinations.

That said, the Singapore government has imposed various precautionary measures on employees returning from specified regions / countries exposed to the coronavirus infection. This will be elaborated upon further in the response to Question 2 below.

SOUTH KOREA

There is no express statute that permits an employer the specific right to order an employee who visited a region / country exposed to coronavirus infection to take additional medical examinations. However, based on Article 76 (Safety and Health) of the Labor Standards Act, the conditions for the safety and health of employees are prescribed by the Occupational Safety and Health Act. Pursuant to Article 5 of the Occupational Safety and Health Act (“OSHA”), a business owner has the duty to maintain and promote the safety and health of employees. In this regard, while there is no explicit law permitted the employer to order and employee to take additional medical examinations, such an order would be consistent with the business owner carrying out his or her duty under Article 5 of OSHA.

2. CAN AN EMPLOYER ASK AN EMPLOYEE WHO VISITED A REGION / COUNTRY EXPOSED TO CORONAVIRUS INFECTION TO TEMPORARILY WORK FROM HOME?

CHINA

Based on the current Coronavirus prevention and control measures in China, people who visited a region or country with high risks of Coronavirus infection must be quarantined for at least 14 days after coming back to their resident place subject to the requirements of the locations which may different from one place or the other. Currently in practice, people moving in China from other locations are usually required to be subject to 14 days’ quarantine, while people coming from other countries especially France, Germany, Iran, Italy, Japan, South Korea, Spain, the United States and etc. are required to be subject to 14 days’ quarantine.

During the quarantine period, the employer may arrange the employees to work from home by means of telephone or Internet. If it is not feasible for the employees to work from home, upon consulting with the employees, the employer can arrange the employees to take leave instead. The employer is obliged to pay normal salary to the employees during such period.

HONG KONG SAR

Generally speaking, yes.

Specifically, for those employees that are subject to the current Hong Kong Government’s quarantine orders (home quarantine or quarantine in a quarantine centre) as mentioned below, they will not be able to report to their duty in office. Such people will be issued a medical certificate, and the Government has appealed to employers to maintain good labour-management relationships by making flexible arrangements for these employees. Where practicable, employers are encouraged to allow such employees to work from home or grant them paid leave.

  1. People entering Hong Kong who have been to Mainland China, South Korea, Iran, Hokkaido in Japan, and Schengen Area in Europe Italy in the past 14 days prior to entering into Hong Kong; and
  2. People arriving in Hong Kong who have been to any overseas countries/territories in the past 14 days (starting from 00:00 am 19 March 2020).

For those employees who are not subject to mandatory quarantine orders, temporary work from home arrangements may be justified given that employers in Hong Kong have an obligation to, as far as reasonably practicable, ensure the health and safety of its employees at work.

SINGAPORE

The Ministry of Manpower in Singapore has encouraged all employers to adopt telecommuting or videoconferencing to allow employees to work from home (though this has not been made mandatory). Employers who wish for their employees to work from home are required to pay such employees their full salary during the period.

From 20 March 2020 at 2359 hours, travellers returning from all countries will be placed on a mandatory 14-day Stay-Home Notice (“SHN”). If an employer’s foreign employees are returning from overseas from 20 March 2020 at 2359 hours, the employer must do the following:-

  1. Ensure that it can fulfil additional responsibilities as stipulated by the Ministry of Manpower. These include ensuring a suitable place of residence has been secured for the employee for them to complete their 14-day SHN. As these measures continue to evolve we recommend reaching out to local counsel for the latest advice; and
  2. Request for the Ministry of Manpower’s approval via an online application form before the foreign employees and their dependents enter Singapore.

Employees on SHN must remain in their residences at all times during the 14-day period and should not leave their residences at all. During the SHN period, employers may adopt flexible work arrangements such as telecommuting and teleconferencing to allow employees to work from home, subject to their job function, organisation’s needs and the nature of the business.

SOUTH KOREA

No express law permits an employer the specific right to ask an employee who visited a region / country exposed to coronavirus infection to stay away from the workplace. Pursuant to Article 23 of the Labor Standards Act, an employer is not entitled to transfer an employee without justifiable cause. In this regard, Article 23 empowers an employer to transfer an employee for justifiable cause. That an employee visited a region / country exposed to the coronavirus infection would be justifiable cause for an employer to ask an employee to stay away from the workplace.

3. WHAT IF THE EMPLOYER DECIDES TO CLOSE ITS OFFICE/PLANT DUE TO THE CORONAVIRUS THREAT? WOULD THE EMPLOYEES STILL BE ENTITLED TO THEIR SALARIES?

CHINA

Since the Coronavirus was broken out during the Chinese public holidays, therefore, after the public holidays and the Chinese government makes announcement on the resumption of work, employers are entitled to decide, at their own discretion, whether to resume their operation, or continue to suspend their business, or close their office/plant or not. If an employer suspends its business or closes its office/plant, the employer must pay its employees full salaries stipulated in their labor contract within one salary payment cycle, which is normally one month. If such period is more than one salary payment cycle, the employer can pay the employees who do not work only the living allowance, which is normally 70% to 100% of the minimum wage as announced by the local governments.

However, for the employees who are coronavirus patients or suspected patients, employer must pay them full salaries stipulated in the labor contract during the quarantined medical treatment period and medical observation period, no matter whether the employer has closed its office/plant or not.

HONG KONG SAR

Yes – Employers are prohibited from deducting employees’ salaries except under certain circumstances. Closure of office/plant is not one of the permitted exceptions. It is a criminal offence for an employer to make illegal deduction(s) of employees’ salaries.

SINGAPORE

Unless there is an express contractual exclusion (eg. in employment contracts), employees should still be entitled to their salaries for the relevant period.

SOUTH KOREA

An employer must pay its employee 70% of the employee’s wages even if the cause of the office closure was attributable to the employer (Article 46(1) of the Labor Standards Act). However, pursuant to Article 46(2) of the Labor Standards Act, if the cause was due to an unavoidable reason (such as the coronavirus), with the approval of the Labor Relations Commission concerned, the employer may pay the employees shutdown allowances lower than the standards as prescribed in Article 46 (1) (i.e., lower than 70% of the employee’s wages).

4. CAN THE EMPLOYER SEND AN EMPLOYEE WHO VISITED A REGION EXPOSED TO THE CORONAVIRUS ON HOLIDAY LEAVE? WHAT WOULD THE PROCEDURE BE? CAN THE EMPLOYEE REFUSE?

CHINA

As mentioned under question 2, people who visited a region or country with high risks of Coronavirus infection shall be quarantined for at least 14 days. During such period, the company may arrange the employees to take annual leave upon consulting with them if the employees are not able to work from home by means of telephone, Internet, etc.

In the meantime, under PRC law an employer has the right to coordinate and arrange the employee to take annual leave according to the specific situation of its production and operation by taking consideration of the employee's willingness. No consent from employee is required.

Therefore, if the employee is not able to work from home, the employer should first consult with the employees about taking annual leave. If an employee does not agree upon consultation, the employer can arrange them to take annual leave by giving the employee a written notice. During the annual leave, the employer must pay the employees full salaries.

HONG KONG SAR

Employers can send employees on leave, provided that the time of the leave should be appointed by the employer after consultation with the employee or the employee’s representative, confirmed by a written notice to the employee at least 14 days in advance, unless a shorter period has been mutually agreed; OR employers can give one month’s notice in writing of his intention to close down his business or part thereof for the purpose of granting annual leave to every employee who will as a result have to take annual leave or otherwise stop work during the period of closure.

SINGAPORE

No. However, in light of the wider travel restrictions imposed by the Singapore government, employees who insist on proceeding with non-essential, non-work-related travel outside Singapore may have to use their annual leave to serve out their quarantine, stay-home notice or company-imposed leave of absence period. Employers who adopt unreasonable practices, such as requiring employees who are not under Government-imposed leaves of absence / SHN to stay away from the workplace by consuming their annual leave entitlements without consent or putting them on no-pay leave may have their work pass privileges suspended. 

SOUTH KOREA

No. This would be a violation of Article 60(5) (Annual Paid Leave) of the Labor Standards Act which mandates that an employer shall grant paid-leave days for the specific days that the employee claims therefor. Moreover, that an employee visited a region / country exposed to the coronavirus infection would not suffice as justifiable cause for an employer to send an employee on holiday leave (even if paid) as this could be deemed as a punitive measure that is not permitted under Article 23 of the Labor Standards Act. The reasonable action for employer to take would be to ask the employee to temporarily work from home (or prescribe other non-punitive measures).

5. CAN THE EMPLOYER ASK ITS EMPLOYEES WHERE THEY PLAN TO SPEND THEIR HOLIDAYS?

CHINA

Yes. As a part of coronavirus prevention and control measure carried out by the government, employer shall collect the information from employees of where they spent holidays as well as their health status and provide such information to the government. Employees shall neither refuse to provide the said information nor fabricate false information.

HONG KONG SAR

Yes – Employers can ask, but they cannot force, employees to provide such information. In practice, employers can encourage employees to voluntarily report their travel history and collect such information to the extent that is necessary for ensuring all employees’ health and safety. Employers should also comply the Personal Data (Privacy) Ordinance (Cap 486) when collecting and retaining such information.

SINGAPORE

Given the coronavirus situation is a continuously evolving one globally, it is fairly common for Singapore employers to obtain travel declarations from employees on travel history / upcoming plans to the affected area(s) set out above.

SOUTH KOREA

Employers can ask employees to inform them of their planned destination, however the disclosure of such information is at the employee’s sole discretion. Should the employer find out that an employee is planning to visit an affected country during his/her annual leave, the employer may cancel the employee’s annual leave; however, the employer would then be obliged to compensate the employee for the expenses that the employee incurred.

6. CAN THE EMPLOYER REFUSE TO ALLOW INTO WORK AN EMPLOYEE WHO VISITED A REGION EXPOSED TO THE CORONAVIRUS?

CHINA

Please refer to the answers to questions 2. Employees who visited a region or country with high risks of Coronavirus infection are not allowed to go to work for at least 14 days in accordance with the current prevention and control measures. After the restriction stipulated by the government is removed and such employees are able to go to work, the employer may still arrange them to work from home or stay at home. However, the employer is obliged to pay the employees full salaries. Further unilaterally suspending the work of the employee without proper reason may be considered as the discrimination and refusal of providing labor conditions, which can give the employee the entitlement of terminating the labor contract and claiming for economic compensation.

HONG KONG SAR

Yes, however, such restriction would need to be in the appropriate context such as that of Employers taking measures to protect the health and safety of employees at the workplace. Employers may request employees to comply with the quarantine imposed by the Government or request them to work from home (see answer to question 2 above), or request them to take annual leave (see answer to question 4 above).

SINGAPORE

If an employee has completed the relevant quarantine period, leave of absence and / or SHN, the employer cannot validly refuse to allow the employee back into work. As such, whilst the Workplace Safety and Health Act in Singapore obliges an employer to take reasonably practicable measures to ensure the safety and health of employees, this has to be balanced with the Ministry of Manpower’s guidelines - i.e. an employer should adopt unreasonable practices such as requiring employees who are not on Government-imposed leaves of absence / SHN to stay away from the workplace. 

SOUTH KOREA

Pursuant to Article 23 of the Labor Standards Act, an employer is not entitled to transfer an employee without justifiable cause. Conversely interpreted, Article 23 empowers an employer to transfer an employee for justifiable cause. Whether the fact that an employee visited a region exposed to the coronavirus constitutes justifiable cause for an employer to order an employee to stay away from the workplace would likely be determined based on the duration the employee was required to stay away from the workplace, whether the employee was allowed to work from home or other qualifying factors. In this regard, it is likely that a blanket refusal would be viewed as contravening Article 23 of the Labor Standards Act.

Authors

Lakshanthi Fernando, Partner
Lakshanthi Fernando
Managing Director
Singapore
Pradeep Nair
Associate
Singapore