Preparing Coronavirus Workplace Safety Responses in APAC Countries

Orrick - Global Employment Law Group

As the coronavirus, now officially named the “COVID-19 virus,” continues to spread across the world, employers are also looking to ensure a safe working environment for their employees. In addition to our previous perspectives for U.S. employers and EU employers, this overview provides employers in the rest of the Asia-Pacific (“APAC”) region with practical advice to develop their COVID-19 virus response strategy. Specifically, this overview covers the countries of: The People’s Republic of China, Hong Kong, Japan, Malaysia, Singapore, South Korea, Taiwan, Thailand, and Vietnam.

General:

Several common themes emerge across the APAC region. For instance, taking temperatures of employees is recommended guidance in most APAC countries, in and some jurisdictions like Singapore, it is required. Likewise, employers are generally permitted to obtain travel history information and deny entry into the workplace to any potentially infected employees without triggering any anti-discrimination or wage and hour laws, and in fact, a few APAC countries like Singapore and Taiwan have mandatory quarantines in place that obligate employers to take such action. Finally, most APAC governments recommend providing employees with notice of the company’s protective measures and offering protective gear such as masks and gloves.  Further, many APAC countries have promulgated guidelines for employers to follow, such as helpful advice on maintaining safe and hygienic workplaces, allowing employees to work remotely where possible, limiting travel to infected areas, and continuing to track developments in government responses to maintain flexibility if conditions improve or worsen.

In addition to this general guidance, many APAC countries have country-specific requirements or advice, discussed below.

Please note that the government guidance/requirements and best practices will continue to evolve over time. Therefore, it is strongly recommended to stay tuned in for updates and to make sure that any action or inaction is in line with what is being required/recommended at all times.

China

Government Guidance / Requirements

On the national level, China’s Ministry of Human Resources and Social Security (“MOSSHR”) together with All-China Federation of Trade Union, China Enterprise Confederation / China Enterprise Directors Association, and All-China Federation of Industry and Commerce issued the Circular on Stabilizing Employment Relations and Supporting Enterprise’s Resumption of Work and Production During the Period of Prevention and Control of the Novel Coronavirus-Infected Pneumonia on February 7, 2020 (the “MOSSHR Circular”).

In general, the MOSSHR Circular intends to mitigate the negative economic impact of epidemic prevention measures on businesses while discourages businesses from terminating employees.  Below are some general guidelines:

  1. Remote working is encouraged and if employees cannot work remotely, the employer may confer with employees to take unused paid leave.
  2. Companies are encouraged to implement flexible working hour measures to prevent people gathering or concentration.
  3. If companies are experiencing difficulties, they may confer with employees to adjust salaries, shorten working hours or delay payment of salaries to keep the positions and should try not to lay off employees or lay off less employees. If employees refuse to return to work without good reason, companies may terminate such employees.

In addition, China’s State Council issued Guidelines on Epidemic Prevention and Control Measures for the Resumption of Work and Production in Enterprises and Institutions on February 21, 2020. Below are some measures from the guidelines:

  1. Take body temperature of employees when they enter the premises;
  2. Try to prevent non-employees from entering the premises and if necessary, take body temperature and inquire about travel information;
  3. Maintain good ventilation of the workplace;
  4. Provide hand washing devices or hand sanitizers;
  5. Regular disinfection of public areas and items;
  6. Reduce employee gathering and group activities including meetings, and measures such as staggered working hours, flexible working hours, or working from home may be adopted;
  7. Direct employees to take personal protection measures, such as wearing facial masks in crowded places and washing hands frequently;
  8. Isolate and arrange for medical treatment of employees with suspicious symptoms (such as fever or respiratory symptoms), seal off relevant areas and carry out disinfection, report to local disease control authorities and work to take preventive measures with close contacts.

On the local level, local governments have issued various notices applicable to local businesses. In many places, except for certain businesses (such as on-site educational training, theaters, and travel agencies) that are generally prohibited from resuming business, businesses are at least required to make a filing including an epidemic prevention and control plan with local governments before resuming business, and businesses may be required to make commitments in such filings to take certain measures to prevent the spread of the COVID-19 virus. Based on public information, it is likely that the local governments may require employers to work with office buildings to report individuals with high risks of infection. Failure to do so may result in a penalty against the employer.  In addition, such local measures are subject to frequent changes reflecting the dynamics of the epidemic. For example, previously, the Beijing government only required anyone travelling from Hubei providence or having contact with Hubei Province or otherwise having a related epidemiological history to undergo a 14-day quarantine. However, after a government employee not travelling from Hubei providence was diagnosed with the COVID-19 virus and transmitted it to colleagues, the Beijing government escalated the measure by requiring anyone traveling to Beijing to undergo a 14-day self-quarantine. A few days later, the Beijing government issued a new policy exempting seven categories of travelers to Beijing from the requirement. Currently, in Beijing, generally no more than 50% of employees are allowed to work at the premises at the same time.

Furthermore, if employers arrange for employees to work remotely from home during extended government shutdowns, they may be required to compensate the employees accordingly. For instance, the Shanghai province’s extended shutdown days from February 3 to 7 were considered “rest days” similar to normal weekends, so if companies arranged for employees to work from home during those days, the employer would be required to provide compensatory time off or pay a premium to the employees for having to work on “rest days.”

In addition, the Beijing government issued a circular on March 8, 2020 to reduce or waive employers’ mandatory social insurance contributions for several months. Specifically, for large-scale enterprises and social organizations, the employer’s contribution rates for pension insurance, unemployment insurance and work-related injury insurance are cut by half from February to April 2020. For mid- and small-scale enterprises and certain other employers, they are exempted from making contributions for the same three insurances from February to June 2020.

Additional Best / Common Practices

Employers may require all individuals to complete a travel information form asking about recent travel to Wuhan or other outbreak areas, and local governments may require employers to do this before allowing them to resume business. Furthermore, employers may require all individuals to wear a mask and gloves, and the local government may require businesses to commit to do this before approving their application to resume business.

Hong Kong

Government Guidance / Requirements

Since the Hong Kong government implemented work-from-home arrangements for all civil servants, except for staff or departments providing emergency services and essential public services, on January 29, 2020, public services began to gradually resume on March 2, 2020. The Centre for Health Protection and the Labour Department have respectively issued directives setting out precautionary measures that employers should take and appealed to employers to provide necessary personal protective equipment like surgical masks to front-line staff and those in need to reduce the risk of spreading the virus in the community.

Travel Restrictions / Quarantine Requirements

Currently, residents from the Hubei Province in China and non-Hong Kong residents who have visited the Hubei Province in the past 14 days are restricted from entering Hong Kong.  Non-Hong Kong residents arriving from Korea are also not permitted to enter Hong Kong.

The following categories of people will be subject to compulsory quarantine at a designated location for 14 days:

  1. All persons entering Hong Kong from mainland China (including Hong Kong residents, mainland China residents and visitors from other places);
  2. All persons entering Hong Kong from places other than mainland China, but who have been to mainland China in the past 14 days;
  3. All Hong Kong residents who have been to Daegu and Gyeongsangbuk-do in Korea in the past 14 days;
  4. All persons who have been to Emilia-Romagna, Lombardy or Veneto regions in Italy in the past 14 days;
  5. All persons who have been to Iran in the past 14 days.

Hong Kong residents returning from other parts of Korea will be required to undergo medical surveillance for 14 days.

Best Practices 

Forming a dedicated team to monitor and respond to developments, coordinate information, and provide employees with guidance on work arrangements and business travel is recommended.  Depending on the local situation, employers may consider making flexible work arrangements where practicable, such as work-from-home arrangements and splitting of teams.  Even if such arrangements are implemented, employers shall continue to comply with their obligations under employment contracts, including to pay wages and to provide other employment-related entitlements to employees.

As part of the preventive measures and their obligation to provide a working environment that is safe and without risks to health to employees as far as practicable, employers should consider providing surgical masks and sanitizer gel to employees.  If an employee is issued a medical certificate for being required or ordered by a Health Officer to be put under quarantine, employers shall grant the employee sick leave in accordance with the Employment Ordinance and the employment contract.  Subject to the terms of the employment contracts and unless there are genuine operational requirements of the business, employers shall not require employees to take unpaid leave without the consent of the employees.

Japan

Government Guidance / Requirements

Effective February 1, 2020, the Japanese government identified the COVID-19 virus as a designated infection under the Infectious Disease Law. Now, ministries of all prefectures may order employees who have been infected to be hospitalized and to be suspended from work, and the general rules for sick employees under the Industrial Safety and Health Act does not apply to the extent that the Infectious Disease Law is applicable. If employees are suspended from work under the Infectious Disease Law, absence is treated the same as ordinary absence for sickness. Paid sick leave is not mandatory in Japan, and if no paid sick leave is granted at a company and employees are unpaid, the employees’ health insurance pays accident and sickness benefits to the employees at the rate of 2/3 of their daily base salary. If the employees desire to use their annual vacation days during such absence so that they are fully paid, employers may apply annual vacation days for such absence. However, it is employees’ option whether to use their annual vacation days or not and employers are not allowed to force employees to use their annual vacation days for such absence. This may come into play all the more for employees with childcare obligations based on the Japanese government’s announcement that all public elementary schools, junior high schools, and high schools will be closed from March 2 to the beginning of spring break in early April. On February 26, 2020, the Japanese government announced that large scaled sports and cultural events should be cancelled or postponed until March 10, 2020, and on March 10, the government announced extension of this measure until March 19, 2020.

If doctors confirm that such employees are not infected and able to work in the workplace but employers choose to keep them suspended, employers must pay them the statutory leave allowance at a rate of 60% or more of base salary during suspension, as this situation falls under the statutory leave allowance requirement of “suspension due to reasons attributable to companies.”

Additional Best / Common Practices

The Ministry of Health, Labour and Welfare also issued a Q&A with respect to COVID-19 virus workplace contamination on February 7, 2020 and the Q&A has been updated frequently. This also accords with the government’s latest announcement that the country’s main objective is to delay the widespread transmission of the COVID-19 virus and minimize the number of critically ill patients and death. Some specific measures based on that Q&A are:

  1. Foreigners who have been in Hubei in the last 14 days and people who have Chinese passports issued in Hubei are generally barred from entering Japan. Effective from March 9, all persons (including Japanese citizens) who are entering Japan from China and South Korea must self-quarantine themselves at designated places (home or hotels) for 14 days and use of public transportation is prohibited.
  2. It is an employee’s responsibility to contact a local healthcare center and see a doctor if they have had contact with people who have been infected or if infection with coronavirus is otherwise suspected. Employers must ensure that sick employees do not report to work and if employees who may have been infected report to work, employers must refuse to permit such employees in the workplace so as not to put other employees at risk of infection. Many companies make public announcements when their employees are infected to alert people about possible contact with infected people.
  3. The government has recently asked companies to take measures to keep employees away from congested public transportation and gatherings by using remote working, shifting work hours, and allowing employees to take annual paid vacation to the extent possible. These requirements are not mandatory at the moment, though.Due to elementary school closure, many employers become unable to work to look after their children and the government is providing subsidies to companies which give special paid vacation days to those employees.

Malaysia

Government Guidance / Requirements

Malaysia requires isolation of individuals who have travelled to Hubei Province over the past 14 days. While there has been no specific directive or requirement for companies to take measures, in a recent press statement by the Director of the Department of Health and Safety, the director reminded employers that they would be liable for a fine of up to RM50,000 or imprisonment of up to 2 years if they fail to ensure the safety and health of employees and expose them to the COVID-19 virus. As a result, employers are encouraged to develop COVID-19 virus response plans to protect the health and safety of workers.

Under the Prevention and Control of Infectious Diseases Act of 1988, any adult person who is in charge of any person who suffers from an infectious disease or who dies from a disease must report such a case to the nearest government health facility or police station. Infectious diseases are those identified in the First Schedule of the Act but so far, the government has not updated the Schedule to include the COVID-19 virus.

Additional Best / Common Practices

Employers may also consider providing hand sanitizing stations in their buildings and posting signs advising staff and visitors about the importance of cleaning their hands and suggesting that individuals cover their mouths and faces by wearing masks. Similarly, employers may place employees on paid medical leave and the government has encouraged (though not made it a requirement) for paid leave to be provided in cases where an employee who is affected is placed on leave in excess of the medical leave entitlement. Where an employee appears unwell but does not show any conclusive signs of the virus, companies can request that the employee work from home. The Ministry of Human Resources has issued non-mandatory guidance suggesting that for those employees exhibiting symptoms, employers should instruct those employees to be examined immediately by a registered medical practitioner at the expense of the employer.

Singapore

Government Guidance / Requirements

The Ministry of Health (MOH) has advised that all employers must require employees to undergo regular temperature-taking and check whether they have respiratory symptoms such as cough and runny nose. Employers must take employees’ temperatures at least twice daily, and anyone with a fever or is unwell should leave the office immediately to see a doctor.

Employees who are required to be on home quarantine will be deemed to be on paid hospitalization leave. For employees who have used up their paid hospitalisation leave, employers are urged to exercise compassion and flexibility by granting additional paid hospitalisation leave, as the employers concerned may face hardship during this time. In addition, the Ministry of Manpower (MOM) has advised that if an affected employee has used up their medical benefits provided for under the employment contract and/or collective agreement, employers should consider providing medical coverage as the employees concerned may face financial hardship during this time.

Additional Best / Common Practices

Effective March 5, 2020, MOM requires all work pass holders (including dependants) with travel history to mainland China, South Korea, northern Italy, or Iran to be placed on a 14-dya stay at home notice (i.e., quarantine).

Employers should obtain a health and travel declaration from their employees on whether they have travelled to the above-mentioned locations recently, or if they have any upcoming travel plans to these locations. This is because for contact tracing purposes, such information may be needed by the MOH to issue home quarantine orders or other measures to restrict the potential spread of the virus. The Personal Data Protection Commission has confirmed that in the event of a COVID-19 case, relevant personal data can be collected, used, and disclosed without consent during this period to carry out contact tracing and other response measures, as this is necessary to respond to an emergency that threatens the life, health or safety of other individuals.

Employers should also inform employees that returning residents and long-term pass holders with recent travel to the above-mentioned locations within the last 14 days that they will be placed on a leave of absence until the incubation period for the disease passes. If the employees have been to the Hubei Province, MOH will require that the individuals be quarantined.

For foreign employees on any work passes, there are additional requirements if they have travelled to mainland China, South Korea, northern Italy, or Iran recently. For those that have travelled to these locations arriving in Singapore, employers must request the MOM’s approval 3 days before the employee’s planned arrival date in Singapore. Employers must then inform the incoming employees that they will be on a 14-day leave of absence upon arrival in Singapore and get their written acknowledgement. Employers need to keep this acknowledgement form and submit it to MOM when requested by the Controller of Work Passes. MOM has also indicated that it will hold employers responsible for ensuring that those who need to be on leave of absence stay away from the workplace.

South Korea

Government Guidance / Requirements

Currently, Korea has not adopted any mandatory specific measures which impose burdens on employers. There is an existing public health law, the Infectious Disease Control and Prevention Act, which imposes a general duty to exclude persons known to have an infectious disease, and to report known cases to the Korea Centers for Disease Control (KCDC).

There is an affirmative obligation under Art. 51 of the Infectious Disease Control and Prevention Act to clean and sanitize public facilities, but specific cleaning measures are not mandated.  Likewise, employers may face liability for failing to report infected employees. Specifically, Art. 81 of the Infectious Disease Control and Prevention Act provides that a party who has reason to suspect a case of a highly contagious disease, or who knows of a person being infected, but fails to report to public health authorities may be subject to a criminal fine of up to W2,000,000 (about USD$1,700).

The Ministry of Health and Welfare has announced that it is concentrating human and financial resources in Daegu. While it remains unclear what this means, no further restrictions like a travel ban have been imposed yet.

Additional Best / Common Practices

In addition to reporting requirements, South Korean employers are recommended to do the following:

  1. Keep in touch with local authorities such as the local public health center and KCDC hotline, and immediately report to authorities when someone is suspected to test positive (Note that the Personal Information Protection Act excuses the disclosure of personal information where such disclosure is mandatory under other laws or necessary for the protection of public health);
  2. Put someone in charge of outbreak reporting to public health authorities;
  3. Set aside an isolation room for suspected cases;

The Personal Information Protection Act excuses the disclosure of personal information where such disclosure is mandatory under other laws or necessary for the protection of public health.

Taiwan

Government Guidance / Requirements

Taiwan’s Central Epidemic Command Center (CECC) announced the following travel guidelines:

  1. Taiwanese citizens returning from China, Hong Kong, Macau, Korea, Italy or Iran are to be quarantined for 14 days following their entrance to Taiwan.
  2. Foreign nationals returning from Mainland China, Hong Kong or Macau in the past 14 days are not allowed to enter Taiwan if they do not hold a Taiwan Resident Certificate; Foreign Nationals returning from Mainland China, Hong Kong or Macau in the past 14 days may enter Taiwan if they have Taiwan Resident Certificate, provided that they are quarantined for 14 days following their entrance to Taiwan.
  3. Foreign nationals who have travelled to Korea, Italy or Iran in the past 14 days are to be quarantined for 14 days following their entrance to Taiwan.
  4. No Hong Kong and Macau citizens are allowed to enter Taiwan except for those (i) who are spouses or children under 20 of Taiwanese citizens and have already received Taiwan Resident Certificate; (ii) who need to perform business contracts; or (iii) whose work are transferred to Taiwan due to internal work transfer within a transnational company. Hong Kong and Macau citizens who are allowed to enter Taiwan are quarantined for 14 days following their entrance to Taiwan.
  5. No Chinese nationals may enter Taiwan except for those who are spouses of Taiwanese citizens and have already received Taiwan Resident Certificate. Chinese nationals who are allowed to enter Taiwan are quarantined for 14 days following their entrance to Taiwan.
  6. No international cruise ships may dock in Taiwan.

Further, while the Taiwan government has not specifically required employers to report workers who may have the COVID-19 virus, there are general provisions under the Communicable Disease Control Act requiring the responsible persons in charge or managers of an enterprise or factory to notify the local government within 24 hours if they suspect individuals may have been infected by a communicable disease. Failure to report will subject the company to a fine between NT$10,000 and NT$150,000.

Thailand

Government Guidance / Requirements

The Department of Disease Control at the Ministry of Public Health issued its “Guidelines on the Prevention and Control of 2019 Novel Coronavirus for Places of Business and Workplaces” on January 30, 2020 (the Guidelines), which consists of guidance for businesses and their staff for preventing the spread of the COVID-19 virus.  The Guidelines advise that business operators inform staff on good hygienic practices (wearing facemasks, washing hands frequently, etc.), provide hand gel and surgical masks for staff, dedicate a room for first aid and arrange for transportation for members of staff who become ill, regularly clean equipment and frequently touched surfaces (including computers), use care when dealing with infectious waste such as tissue paper, screen staff in crowded places of business, and temporarily closing the business if a large number of staff become ill. The Guidelines also advise staff to use face masks and hand gel regularly and to stay at home (or wear a mask) if they have any symptoms.

The Guidelines also recommend temporarily closing operations if a large number of staff become ill but not as a result of running out of face masks and/or gloves. The Guidelines recommend regular cleaning of equipment and frequently touched surfaces, such as working desks, computers, work equipment, door handles and toilets, using water mixed with detergent or cleaning liquid and 70% alcohol.  The Guidelines also cover disposal of infectious waste such as used tissue.  Before disposing of infectious waste, it should be put in a sealed bag or in an infectious waste bin, and the collectors should also wash their hands to prevent residual germs.

The Guidelines also appear to address individuals who are already symptomatic (referring to them as “patients”) and recommend that employers isolate these individuals in a designated first aid room and arrange for transportation to a hospital or home.  Staff could be required to take sick leave and return home or to a hospital.  Data obtained by employers concerning any travel history would likely constitute “personal data” and any temperature or other health figures would likely constitute “sensitive personal data” and would be subject to Thailand’s recently enacted Personal Data Protection Act (2019) (PDPA), which will become fully effective in May 2020.   The PDPA requires that a data collector obtain the consent of a data subject before collecting, storing or processing “personal data” and “explicit consent” for “sensitive personal data”, although there are personal and public health exceptions that would likely apply to the COVID-19 virus outbreak here.

Vietnam

Government Guidance / Requirements

By Decision No. 173/QD-TTg, the Prime Minister has officially announced the COVID-19 virus is considered an epidemic in Vietnam and classified it as a Group A disease (meaning, it is one that is an extremely dangerous infectious disease capable of rapid transmission and high fatality). However, Vietnam has not yet declared a state of emergency regarding the COVID-19 virus.

On February 7, 2020, the Ministry of Health (MOH) promulgated the Recommendation For Prevention Of COVID-19 At The Workplace (the Recommendations), in which employers are recommended to perform the following tasks:

  1. Set up a place for hand sanitizing with soap or sanitizer with 60% (or above) alcohol;
  2. Properly sanitize and thoroughly clean the floor and surface of items that may carry the virus, e.g. doorknobs, elevator buttons, working desks, computer keyboards, etc.;
  3. Ensure good ventilation in the office; and
  4. Allow employees to work from home if they have just returned from epidemic regions, are in close contact with those from epidemic regions, or are showing symptoms of contracting the COVID-19 virus.

MOH requires workplaces that have employees in constant contact with numerous individuals to supply their employees with health masks. Furthermore, employers must inform local health agencies if an employee contracts the disease within 24 hours of learning of the infection.

Additional Best / Common Practices

If an employer has reason to believe that an employee is high-risk or obtains direct record of their travel to an epidemic region during the disease’s incubation period, the MOH advises employers to take steps to separate the suspected individual immediately, including putting the employees in a separate room or requiring them to work from home.

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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