Asia-Pacific employment law bulletin 2023

China

Due to the sharp abandonment of the “zero-Covid” policy at the end of last year, various requirements and restrictions have now been relaxed in China. In accordance with the new policy, employers are required to review and update their internal policies and employment practices. There were also significant enhancements in relation to the protection of women’s rights in the workplace effective from 2023.

Developments in the light of Covid-19

On 26 December 2022, China’s National Health Commission (NHC) announced the downgrade of Covid-19 from a Class A to Class B infectious disease. Following this change, the State Council further issued a more specific plan for implementation of the new Covid policy. The announcement and the implementing plan together marked a significant shift from the “zero-Covid” approach that has lasted in China for almost three years. In particular, effective as of 8 January 2023, mandatory quarantine would not apply to people infected with Covid or their close contacts, and testing requirements and travel restrictions have been relaxed. Employers need to take immediate actions to adapt to the new policy with respect to employee management, such as to update their travel policies, to remove requirements for testing results, etc.

Among others, one important aspect is around the treatment of infected employees with respect to leave and pay. Previously, employers were required to provide full pay to any employee who cannot perform work during quarantine due to testing positive (or being determined as a close contact). This is no longer the case starting from 8 January 2023, with employers being allowed to put infected employees on sick leave and to pay sick leave wages instead of full pay.

More specifically, during sick leave, employees may be paid lower wages. The calculation of sick leave wages may vary from region to region, and companies may pay sick leave wages in accordance with the relevant local regulations and their own internal policies. For example, in Beijing, the sick leave wage shall not be less than 80% of the minimum wage standard of Beijing. Employers are recommended to actively communicate with employees to clarify the change so as to avoid any misunderstandings and disputes.

Amendments to women’s protection law

On 30 October 2022, China made significant changes to the Law on the Protection of the Rights and Interests of Women, which has taken effect from 1 January 2023. Several key points are worth noting for employers during recruitment and employment of the employees:

• enhanced protections against sexual harassment: Prior to the amendments coming into force, the 2018 revision of the Law along with Article 1010 of the Civil Code have already made references to sexual harassment and the penalties that such violations would bear. However, these provisions were rather general. These latest amendments provide enhanced protections for women in society and in the workplace. In particular, it explicitly lists out requirements with which employers must comply to prevent sexual harassment of women in the workplace, including establishment of policies against sexual harassment, provision of training, adoption of necessary security measures, set-up of complaint hotlines or emails, formulation of investigation procedures, etc. Failure of taking these necessary measures may expose the employers to lawsuits initiated by procurators and/or administrative penalties from labour authorities. Employers are expected to take these enumerated requirements as a practical guideline to formulate or update their existing policies and practice, in order to ensure a comprehensive anti-sexual harassment system is in place.

• equal opportunities in the workplace: The amendments lay out specific measures for employers to adopt to eliminate gender discrimination. In particular, during the recruitment process, the amendments prohibit restricting jobs to men or giving male applicants priority, and forbids employers from inquiring about or investigating the marital and parenting status of female applicants. Additionally, pregnancy tests or conditions on marriage or maternity status for the job are also forbidden. The labour authorities will take a more proactive role in inspection and investigation of gender discrimination during recruitment and in the workplace, and may impose penalties (including a fine up to RMB 50,000 (approx. USD 7,369)) on employers in breach. Prosecutors may also bring public interest litigation against employers for violation of equal employment requirements.

The amendments also provide other new requirements for employers to comply with, such as workplace health and safety. Employers will need to update their internal procedures, policies, and effectively implement them to ensure sufficient protection of the rights of women employees in compliance with the amended law.