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 Labour issues relating to novel coronavirus




 
1) In response to the “Guideline on COVID-19 Vaccination and Nucleic Acid Testing for Staff,” how should employers formulate implementation plans?
Pursuant to Article 3 of Law No.2/2004 (Law on the Prevention, Control and Treatment of Infectious Diseases), individuals, public or private entities are obliged to abide by the orders or guidelines issued by the health authorities for this purpose.  Moreover, under Article 12 of Law No.7/2008 (Labour Relations Law), employers and employees are obliged to strictly comply with laws and regulations and the work must be provided in good conditions of hygiene and safety.  Therefore, employers are obliged to, in accordance with the guidelines of the health authorities, implement the measures specified in the guideline depending on the operation of business of the enterprises and the actual situation, and employees are also obliged to cooperate with the implementation of relevant measures to ensure the health and safety of the society and work environment.

2) In response to the “Guideline on COVID-19 Vaccination and Nucleic Acid Testing for Staff,” what should be done if employees are unable to go to work due to noncompliance with the requirements of the guideline?
Staff who are the applicable targets of the “Guideline on COVID-19 Vaccination and Nucleic Acid Testing for Staff” are obliged to comply with the requirements of the guideline.  If the employee does not comply with the guideline and the requirements of the implementation plan formulated by the employer, and thus he/she fails to go to work, it constitutes the situation of unjustified absence mentioned in paragraph 3 of Article 50 of Law No.7/2008 (Labour Relations Law).  However, if a better agreement has been reached between both parties, the relevant agreement shall continue to be performed.

3) In response to the “Guideline on COVID-19 Vaccination and Nucleic Acid Testing for Staff,” if an employee is unable to go to work due to noncompliance with the requirements of the guideline, and thus the situation of unjustified absence occurs, does it constitute the rescission of the labour contract with just cause?
If an employee does not comply with the “Guideline on COVID-19 Vaccination and Nucleic Acid Testing for Staff” and the requirements of the implementation plan formulated by the employer for personal reasons, and thus he/she is absent from work, it shall be deemed the unjustified absence.  Pursuant to Article 68 of the Labour Relations Law, in general, any fact or serious circumstances that makes it impossible to continue the labour relation shall constitute just cause for rescission of the contract.  Moreover, according to subparagraph 4) of paragraph 2 of Article 69 of the same law, when the number of unjustified absences is greater than 3 consecutive days or 5 separate days in each year, it shall be considered just cause for the employer to rescind the contract.

4) In response to the “Guideline on COVID-19 Vaccination and Nucleic Acid Testing for Staff,” how to arrange for receiving COVID-19 vaccine or undergoing nucleic acid testing?
If an employee receives COVID-19 vaccine or undergoes nucleic acid testing during working hours, he/she must obtain the employer’s prior consent and cannot decide to leave the post on his/her own. If the employer consents to the employee’s receiving COVID-19 vaccine or undergoing nucleic acid testing during working hours, it shall be deemed the justified absence stipulated in paragraph 2 of Article 50 of Law No.7/2008 (Labour Relations Law), and the employer may consider not making deductions from the employee’s wages for the period of his/her absence from work for receiving COVID-19 vaccine and undergoing nucleic acid testing, however, if a better agreement has been reached between both parties, the relevant agreement shall continue to be performed.

5) In response to the “Guideline on COVID-19 Vaccination and Nucleic Acid Testing for Staff,” what should be paid attention to when negotiating holiday arrangements, such as weekly rest or annual leave, with (resident and non-resident) employees?
In the case that the employer and the employee negotiate the arrangements for taking the weekly rest or annual leave, pursuant to Articles 42 and 47 of the Labour Relations Law, both parties may agree on the work or holiday arrangements; if the arrangements for weekly rest or annual leave are unilaterally made by the employer, he/she has to arrange the employee’s weekly rest at least 3 days in advance and arrange the employee’s annual leave period at least 30 days in advance.

6) In response to the epidemic prevention measures, areas need to be sealed off (which include buildings and hotels) and employees living or working in the areas have to be isolated or their health colours change to red or yellow; what should be done about the employees’ work arrangements?
Pursuant to Article 3 of Law No.2/2004 (Law on the Prevention, Control and Treatment of Infectious Diseases), individuals, public or private entities are obliged to abide by the orders or guidelines issued by the health authorities for this purpose.  Both employees and employers shall strictly enforce the orders and guidelines to protect employees’ safety at work.
The Government of the Macao SAR’s sealing off areas (which include buildings and hotels) for the needs of epidemic prevention may result in the failure to provide work by the employees who are in the buildings or hotels being sealed off or the compulsory business suspension of the enterprises which are in the areas, and therefore the employees’ health code colours change to red or they have to be isolated; such cases shall be deemed cases of force majeure as the employees’ failure to provide work and the business suspension are not caused by the employers or employees; under such circumstances, employers have no obligation to pay wages, however, if a better agreement has been reached between both parties, the relevant agreement shall continue to be performed.
About employees’ health code colours changing to yellow due to the epidemic prevention measures mentioned above, on the premise that employers and the employees shall follow the health department’s guidelines on the epidemic prevention for different premises, in a manner of mutual understanding and balancing the rights and interests of both parties, both parties shall negotiate the work arrangements during the epidemic period, strive for the hygiene and cleaning managements in workplaces, ensure the employees’ safety at work and face the changes in the epidemic situation together.
 
7) During the epidemic period, employers arrange for employees to work in areas at risk of infection (e.g. to work in quarantine hotels) and thus causing them to be unable to provide work (e.g. with health code in red colour or required to be isolated) owing to epidemic prevention measures; under such circumstances, are the employees entitled to receive wages?
As the employees’ inability to work arises from the execution of the work arranged by the employers, the employers are obliged to pay wages to the employees during this period.

8) Due to the epidemic development, the community-wide nucleic acid test is implemented by the Government of the Macao SAR.  How should the employer and the employee arrange to undergo the test? Are wages required to be paid during this period?
Both the employer and the employee must cooperate with the arrangement of the Government of the Macao SAR for implementation of the community-wide nucleic acid test, according to the operating hours of the nucleic acid test specimen collection stations and the enterprise’s operational situations, both parties shall negotiate in a mutually understanding manner to arrange for the employee to undergo the nucleic acid test.  If the employee undergoes the test during working hours, prior consent of the employer must be obtained and the employee cannot decide to leave work by himself/herself.  If the employee gets the employer’s consent to undergo the test during working hours, such period shall be deemed justified absence and the employer has no obligation to pay wages, however, if a better agreement has been reached between both parties, the relevant agreement shall continue to be performed.

9) Being affected by the epidemic, employees (resident and non-resident) cannot enter the premises to provide work because of their health code with red status; or employees cannot provide work because of the epidemic prevention measures of immigration.  What should be done in such cases?  Are wages required to be paid during this period?
In the event that an employee cannot provide work because of his/her health code with red status or the epidemic prevention measures of immigration, which is caused by his/her visits to certain regions for reasons of his/her own, since such a situation is an act performed by employee on his/her initiative, which is not the situation that the employer is forbidden to impede, without justification, the effective performance of work by the employee, as stated in subparagraph 2) of Article 10 of Labour Relations Law, the employer has no obligation to pay wages, however, if a better agreement has been reached between both parties, the relevant agreement shall continue to be performed.
 
10) What should be paid attention to when negotiating holiday arrangements, such as weekly rest or annual leave, with employees (resident and non-resident) during the epidemic period?
Employers and employees shall negotiate the arrangements of taking weekly rest or annual leave with mutual understanding; in the case that the holidays are arranged by the employer in accordance with the requirements of running the enterprise, the weekly rest shall be arranged at least three days in advance whereas the annual leave shall be arranged at least thirty days in advance.
 
11) Owing to epidemic prevention measures, the non-resident employee originally receives the accommodation allowance and lives in the region outside Macao, but now chooses to stay in Macao.  Then who should pay the expenses?
Paragraph 2 of Article 26 of Law No.21/2009 (Law for the Employment of Non-resident Workers) stipulates that the non-resident employee’s right to lodging may be guaranteed by the employer, or by the employment agency who or which hired the respective worker, and may be satisfied in cash.
If the employer has paid the non-resident employee in cash to fulfill the obligation of accommodation guarantee but the non-resident employee chooses to stay in Macao, the non-resident employee shall be responsible for the relevant expenses.  However, if a better agreement has been reached between both parties, the relevant agreement shall continue to be performed.
 
12) What should be done if a resident employee who is habitually resident in Zhuhai but has to stay in Macao owing to epidemic prevention measures?
The existing law does not have special provision on the resident employee’s accommodation and the employer is not obliged to provide accommodation, but without prejudice to the employer’s providing assistance, according to his/her condition, in accommodation in Macao to the employee who has to stay to work in Macao, so as to cope with the changes in the epidemic situation together.
 
13) In the face of the epidemic, enterprises may fail to arrange for the employees to work for different reasons.  Do enterprises need to pay wages to employees as usual under such circumstances?
Regarding whether employers who fail to arrange for employees to perform work under the epidemic need to pay wages to employees, there are mainly three situations, as shown below:
A. The Macao Special Administrative Region (MSAR) Government asks the closure of establishments for epidemic prevention purposes which results in suspension of enterprise operations; as such cases are deemed cases of force majeure, the suspension of business is neither caused by employers nor employees.  Under such circumstances, employers have no obligation to pay wages, however, if a better agreement has been reached between both parties, the relevant agreement shall continue to be performed;
B. If enterprises take the initiative to respond to the Government’s appeal or employers do not operate their businesses for reasons of their own, employers have the obligation to pay wages;
C. In the case that the shops operate as usual and the employees cannot go to work for reasons of their own (for example, the employees are unable to go to work because the traffic is blocked or the employees are kept in isolation), such cases are deemed justified absences and employers have no obligation to pay wages, however, if a better agreement has been reached between both parties, the relevant agreement shall continue to be performed.
 
14) Can an enterprise rescind a contract with just cause with the (resident and non-resident)employee who is mandatorily isolated for contracting the Novel Coronavirus Pneumonia (NCP) or being a close contact?
Pursuant to subparagraph 2) of Article 27 of Law on the Prevention, Control and Treatment of Infectious Diseases, the number of absent days caused by mandatory isolation for contracting the NCP or being a close contact shall not be counted in the number of days of absence for sickness stated in subparagraph 7) of paragraph 2 of Article 50 of Labour Relations Law; therefore, no matter how long the employee is absent from work due to the said circumstances, it shall not be deemed the just cause for rescission of contract.
It should be noted that the employee's failure to return to work resulting from contracting the NCP is deemed justified absence; the employer has no obligation to pay wages, except for the paid sick leave stipulated by law, however, if a better agreement has been reached between both parties, the relevant agreement shall continue to be performed.
In addition, if the enterprise terminates labour relations with the employee owing to the above-mentioned circumstances, the employer must comply with the stipulations of previous notice period (the isolation period can be counted in the previous notice period) and pay the corresponding compensation for dismissal.
 
15) In the face of the epidemic, companies’ operations are affected and (resident and non-resident) employees may not be able to provide work for reasons of their own.  How to deal with it?   Can an agreement on taking no pay leave be concluded?
Employers and employees should understand each other in the light of actual circumstances and on the premise of cooperating with the MSAR Government’s implementation of epidemic prevention measures, they should negotiate in good faith on work arrangements to guarantee employees’ safety at work. No pay leave must be agreed upon by employers and employees and cannot be decided by either party.  When agreeing upon the no pay leave, both parties should specify the period of absence and other work arrangements in the light of actual circumstances and in accordance with good faith to facilitate both parties’ implementation of the agreement.  Since the epidemic situation fluctuates and is unpredictable, to protect the rights and interests of employers and employees and maintain harmonious labour relations, the period of no pay leave should be specified and in line with the actual situations of enterprises and employees.
 
16) Regarding the isolation measures (a non-resident employee leaves Macao and goes to mainland China; when re-entering Macao, he/she has to be kept in isolation at the designated location) implemented by the MSAR Government, in the case that the employee cannot provide work because of the implementation of such measures,  how to deal with it?  Does the employer need to pay wages during this period?
After the measures come into force, the employee leaves Macao for reasons of his/her own and thus has to be kept in isolation and is unable to provide work; since this situation is an act performed by the employee on his/her initiative, which is not the situation that the employer is forbidden to impede, without justification, the effective performance of work by the employee, as stated in subparagraph 2) of Article 10 of Labour Relations Law, the employer has no obligation to pay wages, however, if a better agreement has been reached between both parties, the relevant agreement shall continue to be performed.
 
17) Can an enterprise and its (resident and non-resident) employees agree on wage reductions?  What are the relevant legal procedures?
Under Labour Relations Law, to reduce the employee’s basic remuneration, there must be a mutual agreement in writing between both parties, and the agreement will only take effect after the Labour Affairs Bureau is notified within ten days of its conclusion.  If the scale of reduction in non-resident worker’s basic remuneration is lower than the amount granted by the employment permit, it must be approved by the Labour Affairs Bureau, and then a written agreement shall be concluded with the non-resident worker and it will only take effect after notice is given to the Labour Affairs Bureau within ten days of its conclusion.
 
18) Being affected by the epidemic, the employer fails to hire a suitable non-resident employee within six months after obtaining the employment permit. What can the employer do?
Pursuant to subparagraph (1) of paragraph 1 of Article 12 of Law No. 21/2009 (Law for the Employment of Non-resident Workers), in the event that the employment permit granted to the employing entity for six months but has not been used, it will result in the expiry of the employment permit.  After the expiry of the employment permit, if the employer still needs to hire a non-resident employee, he/she may resubmit the application for importation of non-resident employees to our bureau and corresponding explanations can be given when submitting the application.  Our bureau will consider according to the actual situation of the case and handle it accordingly.
 
19) Being affected by the epidemic, the non-resident employee has been out of the region over three months.  Will the employee’s blue card be cancelled?
Under subparagraph (3) of paragraph 1 of Article 12 of Law No. 21/2009 (Law for the Employment of Non-resident Workers), in the event that the non-resident employee hired has not been in Macao over three consecutive months, it will result in the expiry of the employment permit; the employer or the employee may contact the Public Security Police Force for more information.
After the expiry of the employment permit, if the employer still needs to hire a non-resident employee, he/she may resubmit the application for importation of non-resident employees to our bureau and corresponding explanations can be given when submitting the application.  Our bureau will consider according to the actual situation of the case and handle it accordingly.

 
 
 
 
©2016 Government of the Macao Special Administrative Region - Labour Affairs Bureau
Address: Avenida do Dr. Francisco Vieira Machado 221-279, Edifício Advance Plaza, Macau
Telephone: (853) 2856 4109    Fax: (853) 2855 0477    E-mail: dsalinfo@dsal.gov.mo
 

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