Coronavirus: What are an Employer’s Obligations in Various Asian Countries?

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As the coronavirus situation continues to evolve, so do companies’ and governments’ approaches to monitoring and helping avoid the spread of the virus. The intensity and anxiety over this issue is extremely high in Asia, exemplified by the recent appearance of the Singapore Prime Minister asking individuals to stay calm and assuring them that things are under control.

Each country, however, is taking its own steps to maintain and quarantine the disease. China, of course, it taking the most aggressive efforts. Many of the other Asian countries have also taken steps to encourage (or require) employer action, such as taking temperatures, ensuring regular cleaning onsite, and supporting work-from-home or leave protections.

The chart below provides a snapshot of what we are seeing in several Asian jurisdictions as of February 11, 2020.1  Employers with operations in these countries can incorporate this information with other efforts to (i) maintain effective and assuring communication with their workforce; (ii) take steps to promote the safety of their workforce; and (iii) monitor and ensure appropriate application of their leave, travel, and related policies.  Of course, specific questions about an employer’s situation and next steps should be directed to licensed counsel.

Considerations in Light of Coronavirus

Is there a quarantine imposed on visitors and employees not exhibiting symptoms?

China

Yes. A 14-day quarantine is in place for anyone who has traveled to a seriously affected area (such as Hubei Province and Zhejiang Province) or has been in close contact with people from those areas.

Japan

Not yet. As the coronavirus has been “designated an infectious disease” under the Infectious Disease Act, the government has the power to impose a quarantine even on people with no symptoms if they are confirmed to have the coronavirus.  Employers must adhere to such quarantines.

South Korea

Yes. A 14-day quarantine is imposed on those who come from Hubei Province (but the geographic restriction may be expanded as the situation rapidly changes).

Those who have been confirmed to have the coronavirus and those who have had contact with them will also be quarantined 14 days at home.

Singapore

Yes. All returning employees with a Hubei travel history within 14 days prior to arrival in Singapore will be quarantined at home or other suitable facilities.

The following people should take a 14-day leave of absence starting the day of their return from China: (a) Residents (Singaporean Citizens/ PRs) with recent travel history to mainland China within the last 14 days; and (b) Long-term pass holders (including Work Passes and Permits, Student Pass, Dependent Pass and Long-term Visit Pass) with recent travel history to mainland China within the last 14 days.

Malaysia

Yes. A 14-day quarantine is imposed for anyone who has travelled to seriously affected areas such as Wuhan in Hubei Province.

India

Sort of. The Indian government has issued an advisory to Indian travelers to refrain from travelling to China.

Further, the government has stated that persons travelling to India from China will be quarantined upon return. However, there is no time period that has been fixed for such quarantine.

How should employers pay coronavirus patients or suspected patients subject to medical treatment and/or mandatory quarantine?

China

Full pay must be provided to coronavirus patients or suspected patients subject to medical treatment and/or mandatory quarantine.

Japan

If the employee is under order from the government not to work, the employer is not required to pay wages during the leave unless the employee uses accrued annual leave or paid leave (e.g., paid sick leave) under a company policy.

For other cases, however, the employer is required to pay at least 60% of pay or full pay depending on the case.

South Korea

If an employee’s coronavirus infection was due to work, employers must compensate employees (60% of the “average wage” must be paid unless an employee is compensated through industrial accident insurance).

If contraction of the illness is not work-related, an employer has no statutory responsibility to pay the employee.

In this case, employment agreements, Rules of Employment, and/or CBA will govern the matter.

Ministry of Employment and Labor highly recommends that employers have relevant provisions for compensating employees on leave due to coronavirus, so that they will not be put at a disadvantage.

The government expressed an intent to aid those on leave due to coronavirus but it is uncertain how it will be implemented (if an employer gets a subsidy from the government, then there is a statutory obligation to give paid annual leave).

Singapore

Employees who are served a Home Quarantine Order will be deemed to be on paid hospitalization leave.

Malaysia

Employers must provide full paid sick leave (in accordance with contractual or statutory terms) to employees who are being treated for coronavirus (diagnosed as having been infected).

Employers are encouraged to provide full pay during the quarantine period to employees under quarantine orders from a registered medical practitioner, regardless of quarantine at home or in a hospital.

Where a quarantine order is imposed on an employee who returns from a country with confirmed cases, employers shall provide full pay to employees under quarantine orders from a registered medical practitioner, regardless of quarantine at home or in a hospital.

Employers should not, in any way, instruct employees to utilize their annual leave entitlement or take unpaid leave while under quarantine.

India

There is no requirement to grant leave in excess of the statutorily mandated leave.

Given the communicable nature of the disease, it is recommended that employees who may or have been affected by the disease be allowed to proceed on paid leave so that they are not constrained to return to work due to loss of pay before they have recovered.

What are an employer's salary obligations to employees who need to take more sick leave days after medical treatment?

China

Flexible. If contracting the virus was work-related, then work-related injury benefits and salary apply.

If contracting the illness was not work-related, then the leave can be considered sick leave days and sick leave pay will apply

Japan

Same as above.

South Korea

Please refer to above. There is no mandatory sick leave that must be given to the employees and such sick leave is governed by Rules of Employment, CBA, and employment agreement.

Singapore

The leave should be treated as sick leave days in accordance with the labor contract.

Malaysia

No specific provision is made though the press has reported the Minister has said that employers are encouraged to provide extra remuneration to employees under a quarantine order that exceeds their sick leave entitlement.

India

Please refer to our response above.

What are an employer’s salary obligations during self-quarantine (not imposed by the government) for non-patients?

China

Flexible. Employers may ask employees to take full-pay annual leave or work from home, or negotiate with the employees to adjust the working time and salary.

Japan

Same as above.

South Korea

Same as above.

Singapore

Employers should ask employees to work from home during a leave of absence (LOA).

If remote working is not possible, employers are encouraged to provide paid LOA over and above employees’ annual leave entitlements.

If that is not feasible, employers can consider the following options, or a combination of the options, for the employees on LOA:

  • Treat employees’ LOA as paid hospitalization leave or paid outpatient sick leave;
  • Allow employees to apply for annual leave;
  • Allow employees to use advanced paid leave or apply for unpaid leave, for employees who have used up their leave entitlements; or
  • Other mutually agreed arrangements between the employers and employees / unions.

Malaysia

No specific provision is made though the press has reported the Minister has said that employers are encouraged to provide extra remuneration to employees under a quarantine order exceeding their sick leave entitlement.

India

Flexible. Employers may ask employees to take full-pay annual / sick leave or work from home.

What is the impact on the employment relationship?

China

For employees who cannot work because they are a coronavirus patient, suspected patient, or in close contact with patients and who are subject to the government's quarantine measures, an employer cannot terminate their employment or subject them to a layoff based on poor performance.

Japan

If the coronavirus infection is considered a work-related injury, the employer is not able to terminate the employment. If the employee contracts coronavirus on their own (e.g., through personal travel to China), the employer needs to put them on long-term sick leave and might be able to terminate their employment at the end of the leave if they are not cured by then.

South Korea

It is debatable but some lower courts are of the opinion that if the sickness is not work-related, one’s employment can be terminated (other factors need to be present, such as a loss of an ability to perform work). But for the coronavirus, it would be difficult to say whether infection is non-work-related.

It would be safe to not take any disadvantageous HR action unless there is a clear and convincing rationale for doing so.

Singapore

Employers are urged to be supportive of their employees’ needs during this period if an employee needs to stay at home for non-work-related reasons relating to the coronavirus situation, e.g., to provide caregiving for family members or for children should schools or childcare facilities close, including allowing work from home.

If working from home is not possible, employers can consider the following options, or a combination of the options, for the employees:

  • Allow employees to use their leave entitlements such as hospitalization leave, outpatient sick leave, annual leave, childcare / family care leave;
  • For employees who have used up their leave entitlements, be flexible in granting paid time off or allow them to use advanced paid leave or unpaid leave; or
  • Other mutually agreed arrangements between the employers and employees / unions.

Malaysia

No impact on employment relationship.

India

The employment relationship cannot be terminated on the grounds of being coronavirus patients, suspected patients or in close contact with patients. However, employment can be terminated for continued ill health. It is recommended that specific legal advice be sought before firing such employee.

What are an employer’s reporting requirements to the government?

China

An employer has the obligation to report any suspected case to the government.

Japan

The medical provider is the one who is required to report to the government.

South Korea

Employers have an obligation to report the occurrence of an infectious disease (likely including the coronavirus) to the public health clinic or request a medical doctor for diagnosis.

Singapore

Employers should inform the affected foreign employees that they will be on a 14-day LOA upon arrival in Singapore and get their written acknowledgement.

They should keep the acknowledgement form and submit it to the Ministry of Manpower (MOM) when requested by the Controller of Work Passes.

Employers shall declare to MOM that they have informed the affected foreign employees of the LOA requirement.

Malaysia

Not applicable.

India

Currently, there are no obligations on an employer to report an employee. It appears that the hospital where the employee goes for treatment would be required to report the employee to the government.

Does the employer have the power to prohibit the employee from coming to the office?

China

Yes

Japan

Coronavirus is not listed as one of the diseases where the employer has the power to prohibit an employee from working under the law; however, the employer should be able to provide an order not to come as part of its duty to maintain a healthy workplace.

South Korea

Yes. Employers have wide discretion in such matters and there are also several statutory grounds (such as Infectious Disease Control and Prevention Act).

Singapore

Yes

Malaysia

Employers may not prevent employees from attending work if no quarantine orders are issued by any registered medical practitioner.

India

Yes

Are there any equal employment opportunity laws regarding this issue?

China

Discrimination based on the coronavirus status is prohibited.

Japan

Race discrimination is prohibited.

South Korea

Coronavirus infection does not fall within the protected categories (nationality, religion, social status); however, certain treatment toward employees could constitute workplace harassment among other HR risks.

Singapore

No specific discrimination law, but treatment towards affected employees may constitute disability discrimination or harassment in the workplace.

Malaysia

Not applicable

India

There is no specific discrimination law on this aspect.

 

Footnotes

1 Because government responses to the coronavirus outbreak continue to evolve, employers should consult with counsel to obtain the most up-to-date information.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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