Labour issues relating to novel coronavirus




 
1) Is it a work accident if a person is infected with the novel coronavirus while he/she is at work?
Pursuant to the Legal Regime on Compensation for Damage Arising from Work Accidents and Occupational Diseases, the general principle of a work accident is the injury caused at place of work and during working time.  Since the modes of transmission of the novel coronavirus are wide and there would be an incubation period from catching the virus to confirmation of infection, whether an employee is infected with the novel coronavirus by reason of work has to be investigated before a conclusion is reached.
Related investigations include the patient’s job nature, whether he/she has been in contact with other patient with the novel coronavirus, the activity path and the relevant medical certificates and documents.  Therefore, all work accident cases related to infectious diseases must be investigated before conclusions are reached; in the course of investigations, the health department may be invited to express opinion on the medical judgement.
Example 1:
If a nurse working at a private medical institution was infected because of having contact with a confirmed case or a highly suspected case or a close contact at place of work and during working time, it shall meet the definition of work accident and shall be handled by the Labour Affairs Bureau according to relevant provisions.
Example 2:
A clerical staff member working at the back office was infected and finally identified as a confirmed case because a household member had been infected with the novel coronavirus; such case is not a work accident.
 
2) What should the employer do if the employee is infected with the novel coronavirus while the employee is at work?
The employer should notify the Labour Affairs Bureau in accordance with the provisions of the Legal Regime on Compensation for Damage Arising from Work Accidents and Occupational Diseases, and the relevant employee can also report to the Labour Affairs Bureau; follow-up actions and investigation shall be carried out by the Labour Affairs Bureau according to law.
Ways to report work accidents by employers:
1) On-line reporting: https://www3.dsal.gov.mo/InjuryOnline
2) By e-mail: o.injury@dsal.gov.mo
3) By fax: 2871 7771

3) 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 the 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 the 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.

4) 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 the Labour Relations Law.  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,” 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.  According to 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, 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.

6) 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 the 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.

7) During the epidemic period, under the epidemic prevention measures taken by the Government of the Macao SAR, 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 view of the current epidemic situation, employers and employees should negotiate the work arrangements or the holiday arrangements as early as possible.  When negotiating the arrangements for taking the weekly rest or annual leave, under the Labour Relations Law, if the arrangements for weekly rest or annual leave are unilaterally made by the employers, they are required to arrange the employees’ weekly rest at least 3 days in advance and arrange the employees’ annual leave period at least 30 days in advance.

8) In response to the “Guideline on COVID-19 Vaccination and Nucleic Acid Testing for Staff,” who should pay for the relevant cost of the nucleic acid testing for the employee?
In the case that the employee has a medical certificate for being unsuitable for vaccination, according to the announcement made by the Health Bureau on 16 October 2021, he/she can be exempted from the relevant cost of the nucleic acid testing.  If the employee is suitable for vaccination but decides not to get vaccinated, he/she should be responsible for the relevant testing cost, however, if a better agreement has been reached between the employer and the employee, the relevant agreement shall continue to be performed.

9) In response to the epidemic prevention measures and guidelines, the employees have to be isolated or their health colours are red or yellow; what should be done about the employees’ work arrangements?
Pursuant Article 3 of the 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.
For the purpose of epidemic prevention and under the epidemic prevention measures implemented by the Government of the Macao SAR, the employees’ health code colours are red or yellow or they have to be isolated; such cases shall be deemed justified absences; the employees should notify the employers as early as possible so that the employers can make operational arrangements.  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.
Regarding the proof of absence, according to the Labour Relations Law, the employees should provide the employers with relevant proof of absence, such as the health codes in red or yellow or living in the area being sealed off.  However, in view of the current epidemic situation, the employers should accept the supporting documents submitted by the employees in good faith and the employees must submit authentic documents, otherwise according to the Labour Relations Law, making false statements on the grounds for absences can be deemed the just cause for dismissal.
If the employees apply for absences to the employers owing to the epidemic situation and the applications are granted by the employers, such cases shall be deemed justified absences.  Both parties may agree on whether the proof of absence is required in advance or what kind of proof of absence is acceptable.
 
10) 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 in yellow 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.

11) 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.

12) During the epidemic period, under the epidemic prevention measures taken by the Government of the Macao SAR, employees (resident and non-resident) have visited certain areas for reasons of their own which results in their failure to provide work owing to their health code colours in red or yellow or the epidemic prevention measures of immigration.  What should be done in such cases?  Are wages required to be paid during this period?
Regarding the situation mentioned in the question, since it is an act performed by the employee on his/her initiative, 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.
 
13) 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?
The 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.
 
14) 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.
 
15) 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.
 
16) 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 the 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 the 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.
 
17) 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.
 
18) 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, 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.
 
19) Can an enterprise and its (resident and non-resident) employees agree on wage reductions?  What are the relevant legal procedures?
Under the 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 non-resident worker’s basic remuneration after reduction is lower than the amount granted by the employment permit, in addition to complying with the requirements mentioned above, an application must be submitted to the Labour Affairs Bureau in advance, and the agreement will take effect only after the application is granted.
 
20) 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 the 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.
 
21) 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 the 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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