As the People’s Republic of China reopens for business, following the nationwide recovery from the pandemic across all provinces, many expatriate employees and entrepreneurs, particularly French and EU citizens holding work permits, have found themselves stranded outside the country. In the wake of lockdowns, airport closures and travel restrictions, including the March 28th travel ban on foreign arrivals to the PRC and restriction on inbound flights, expatriates who have traveled abroad may not be able to return to China until international pandemic control measures are lifted.
The situation is notably distressing to many individuals who have been left without clarity regarding their employment status, legal rights and individual responsibilities amid the chaos sweeping governments, embassies and international airports around the world. In some cases, expatriates in Europe have been separated from their families and loved ones in China. Meanwhile, some business operations may require the immediate return of essential employees.
Considering this, we would like to inform expatriates working and doing business in China about their inalienable rights under employment and housing law, as well as the two-channel entry system for foreign employees to return to Shanghai and its neighboring provinces and resume work, pending a health check, in as little as 48 hours. In most cases, China’s legal system ensures that there is little cause for concern, and returning to the country should be a seamless process.
According to special legislation regarding labor rights passed in January 2020, (Notification of Proper Handling of Labor Relations during the Prevention and Control of COVID-19 pneumonia) employers are required to continue paying the salaries of employees who are unable to work due to quarantine measures or any other emergency measures. The Ministry of Human Resource and Social Security issued a guidance document for employers that permits counting days of missed work against paid leave, recommends the negotiation of delayed salary payments, and allows companies to place employees on unpaid leave as a last resort.
In most cases, employees should be able to work remotely, and are therefore protected against termination or non-payment of wages. In most cases, the worst-case scenario would be unpaid leave. Foreign employees are legally considered to be unable to return to work due to circumstances related to the epidemic, rather than absent from work, and therefore cannot be terminated for missing work due to travel restrictions, lockdowns or quarantine measures.
Employees should nonetheless be able to provide documentation of their travel arrangements and all related circumstances, including flight tickets, evidence that flights have been canceled, and any government notices that affect their ability to travel. In the event of any dispute, the government’s view is that employment stabilization is the highest priority and most preferred scenario to be negotiated towards.
In cases where the employer signs a rental lease on behalf of the foreign employee for their housing requirements in China, the employer is liable to pay the rent regardless of the employee’s presence in the country, unless they are able to negotiate with the landlord. If the lease is terminated due to the employer’s failure to pay rent, employees may not have the legal right to access the premises. Expatriates living under employer provided rental housing should contact their landlords ahead of time in order to ensure that their personal property can be collected and stored safely in the event of their lease being terminated.
For expatriate employees who have signed a lease with their landlord with a housing allowance provided by their employer, the employee would be responsible for the monthly rent under the terms of the lease even if the employer withholds housing allowance funds or refuses to reimburse rental payments. In such cases, the expatriate employee can legally pursue claims against the employer, although they are still responsible for their obligations under the lease. As with travel arrangements, documentation of all payments and circumstances should be kept in case of any dispute.
On March 26th, the Civil Aviation Administration of China (CAAC) restricted inbound flights to the country to one flight per week, per foreign country for Chinese airlines and one weekly flight for foreign airlines. These restrictions have been extended until October, resulting in a dramatic reduction to the number of foreign arrivals in the PRC. Several foreign airlines that have applied for permission to operate inbound flights have not yet received a response.
This resulting scarcity of available tickets has sharply increased demand, and fares may be considerably higher than usual, particularly for direct flights. It is highly recommended that travelers double check all details carefully when booking flights, considering the restrictions in place.
Two Channel Re-entry
Expatriate employees, as well as their families, who are citizens of countries that have signed a fast track travel-ban exemption agreement with China, such as France, could be eligible to return to work in Shanghai and its surrounding provinces within 48 hours if their employer is able to demonstrate that they are essential personnel, and their presence in China is absolutely required for the proper functioning of business operations.
Employees and families returning under the regular channel must undergo a 14 day quarantine upon return to the PRC. Citizens of countries that have signed a fast track agreement with the PRC, if granted permission to return to the country, will be placed in quarantine for shorter periods, in some cases as little as 48 hours, after which their companies will be required to implement special living and working arrangements for a two week period.
Applications should be filed at the Shanghai Foreign Affairs Office (FAO) and successful applicants will have to make arrangements for returning employees to be placed under closed circuit arrangements, which include being housed separately (i.e. in a residential unit completely separated from neighboring residences) and transported between their place of work and residence in a private car with a designated driver, for a period of two weeks.
Employees that are granted permission to return will be issued a special visa and undergo blood tests and be quarantined upon arrival in Shanghai. Employees returning under the regular channel face a mandatory quarantine of period 14 days, while French and German citizens are eligible for a 48-hour quarantine period. The quarantine period depends on the fast track agreement signed by the employee’s country of citizenship. Some countries have a period of longer than 48 hours but less than the 14 days required under the regular channel.
Should you have any further questions regarding returning to China or bringing employees back to China under the current circumstances, we are always available to help.
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