Asia-Pacific employment law bulletin 2022
Developments in the light of COVID-19
On 23 July 2021, the Ministry of Labor announced that an employer cannot require vaccination of its employees, except in the case of a limited number of industries where the Taiwan Centers for Disease Control has mandated a minimum percentage of vaccinated employees (such as nursing homes and kindergartens). Moreover, refusing to get a COVID-19 vaccination is not a statutory reason to terminate employment or impose any penalty.
In addition, an employer should not request an employee to provide any personal information that is not reasonably necessary to employment against the employee’s free will. Therefore, if proof of COVID-19 vaccination is not considered reasonably necessary for an employee’s employment, the employer may not force or pressure the employee to provide such proof.
Proof of COVID-19 vaccination constitutes sensitive personal data under the Taiwan Personal Data Protection Act. In case an employee voluntarily provides proof of vaccination, the employer not only should inform its employees of relevant statutory matters and obtain their prior written consent, but the employer must also show it is within the necessary scope of the specific purpose to collect, process or use the proof of COVID-19 vaccination. Notwithstanding the above, if an employee applies for a “vaccination leave”, an employer is permitted to require the employee to provide proof of vaccination as supporting documentation for the leave of absence.
COVID-19 medical insurance for migrant workers
Beginning 1 December 2021, employers are also required to purchase COVID-19 medical insurance for incoming foreign blue-collar workers (i.e., migrant workers) before they enter into Taiwan, or such workers would be forbidden from entry. The employers are required to pay the full cost of the insurance premiums.
Restrictions on female workers sperforming night shifts was found unconstitutional.
Under the Taiwan Labor Standards Act, an employer is required to obtain the consent of the labor union or labor-management conference, if the employer has the need to make its female workers perform work between 10 PM and 6 AM. However, on 20 August 2021, the Taiwan Constitutional Court released an interpretation, indicating that although such law was aimed at protecting female workers’ health and safety, it also limited female workers’ freedom to work at night and constituted gender discrimination and differential treatment in violation of the Constitution of Taiwan.
As a result, from 20 August 2021, the consent of the labor union or the labor-management conference is no longer required for assigning female workers to work on night shifts. However, an employer is still not allowed to force its female workers to work during night shifts if they have health concerns or other justifiable reasons, including pregnancy and breastfeeding. Taiwan legislators are currently working on an amendment to the Taiwan Labor Standards Act in light of the Constitutional Court’s decision.
Increase of the minimum wage
The Minimum Wage Committee of the Ministry of Labor passed a resolution that from 1 January 2022, the minimum monthly wage from NTD 24,000 to NTD 25,250 (c. USD 910). This is the largest wage increase since 2008.The minimum hourly wage will be increased from NTD 160 to NTD 168 (c. USD 6). In addition, the insurance grades of the National Labor Insurance and National Health Insurance, and the contribution grades of labor pension will be adjusted accordingly.
LCS & Partners: Yu Kai-Hua