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Yes! You Can be Fired if Infected with COVID-19 if You Fail to Follow Up

Yes! You Can be Fired if Infected with COVID-19 if You Fail to Follow Up

Recently, the question whether a COVID-19 infection during working hours is considered a work-related injury has aroused heated discussion among netizens. Another question asked if an employee claims to be infected and doesn’t go to work, can the company require him/her to provide relevant certificates?

Here is an interview conducted to seek for answers to these queries .

Question 1: Is the new coronavirus infection at or on the way to work considered a work-related injury?

Lawyer Wang Chongwei of Jiangsu Bosida Law Firm said that being infected with COVID-19 during working hours is not necessarily a work-related injury. According to the Notice on the Protection of Medical Care and Related Workers Infected with New Coronavirus pneumonia due to Performing Their Duties (Letter [2020] No.11 of the Ministry of Human Resources and Social Security) issued on January 23, 2020, states that medical care and related staff infected with the new coronavirus pneumonia due to the performance of their duties, shall be identified as work-related injuries, according to the law and enjoy employment injury insurance benefits. In addition, in the authoritative answer issued by the Ministry of Human Resources and Social Security on February 21, 2020, it is made clear that if it is not for medical care and related staff engaged in the prevention and treatment of COVID-19, infection with COVID-19 cannot be identified as a work-related injury.

Lawyer Wang Chongwei said that infection on the way to and from work is not an industrial injury. According to the provisions of Article 14 of the regulations on Industrial injury Insurance , those who are injured by traffic accidents or urban rail transit, passenger ferry or train accidents that are not their main responsibility on the way to and from work can not be recognized as work related .

Question 2: Do employees who are infected with the new coronavirus and choose to isolate at home need to submit relevant certificates to the employer?

Lawyer Wang Chongwei said that employees need to submit relevant documents. If they fail to do so or go to work on time, they may be considered as violating the rules and regulations by the employer. Taking Nanjing as an example, it is currently possible to issue a home health monitoring certificate online through the “Nanjing Me” WeChat mini program.

There are fishing staff falsely claiming to be infected or even falsifying certificates, how should a company handle such situations? Lawyer Wang Chongwei said that employees who forge relevant certificates to avoid going to work, can be handled in accordance with the company’s internal rules and regulations.

Question 3: During the period of positive home isolation , does the employer still pay wages normally?

Huang Jinchong lawyer believes that during the period of positive home isolation, employee wages should be handled according to the provisions of the Ministry of Human Resources and Social Security, and the employer should pay basic wages.

Lawyer Wang Chongwei said that the employer should pay wages normally. According to the Notice on Properly Handling Labor Relations during the Prevention and Control of Pneumonia Caused by New Coronavirus Infection (Mingdian [2020] No. 5 of the Office of Human Resources and Social Security) issued by the General Office on January 24, 2020, Corona virus infected pneumonia patients, suspected patients, close contacts during their isolation treatment or medical observation period, as well as because of government implementation of quarantine or other emergency measures can not provide normal labor, The enterprise shall pay the remuneration for the work of the employees during this period, and shall not terminate the labor contract with the employees in accordance with Articles 40 and 41 of the Labor Contract Law.

Some netizens ask whether the employer should provide drugs to infected employees? Lawyer Wang Chongwei said that in general, the employer does not have the obligation to send medicine.

Question 4: Should the employee take leave when his / her roommate is diagnosed and he / she is isolated at home?

Lawyer Wang Chongwei said, According to the Circular on Further Optimizing the Implementation of COVID-19 epidemic’s Prevention and Control Measures (No. 113 [2022]) issued by the Comprehensive Group for Joint Prevention, Control and Prevention of New Coronavirus Pneumonia under the State Council on December 7, 2022, Close contacts with home isolation conditions can be isolated for 5 days at home, or they can voluntarily choose centralized isolation. In real life, many companies also have relevant regulations stating that employees living with positive diagnosis, should first report the situation to the company before implementing home isolation . In this case, home isolation is not a leave of absence.

Some netizens asked what if a parent not living with them is diagnosed, can they ask for leave? In this regard, lawyer Huang Jinchong said that if employees are to go home to take care of a family member , in accordance with the new epidemic prevention policy, they should be counted as leave.

Question 5: Eight of 10 people in the office have been diagnosed, and the remaining two are unwilling to come to work. Is this a case of absenteeism?

Lawyer Wang Chongwei said that it is necessary to distinguish the situation. The remaining two if not diagnosed but are only worried about getting infected, should take the form of consultation with the company and work from home. If the employee does not come to work in the absence of a diagnosis and agreement with the unit, the compsny may determine absenteeism according to its own rules and regulations.

Question 6: Can an employer fire an employee because of an employee’s diagnosis?

Huang Jinchong lawyer said that in a case of no fault of the worker, this can not be used as a reason to terminate the labor contract, otherwise it constitutes a violation of the law, and the employer should pay economic compensation. On the one hand, the employer can unilaterally rescinds the labor contract under the following circumstances: it is proved that the employee does not meet the employment conditions during the probation period; Serious violation of the rules and regulations of the employer; Serious dereliction of duty or engaging in malpractice for personal gain, causing great damage to the employing unit; The laborer establishes labor relations with other employing units at the same time, which seriously affects the completion of the work tasks of the unit, or refuses to make corrections upon the request of the employing unit; Causing the other party to conclude or modify a labor contract against its true will by means of fraud, coercion or taking advantage of the other party’s unfavorable position, thereby invalidating the labor contract; Being investigated for criminal responsibility according to law.

The termination of a labor contract by an employer on the grounds that a worker is diagnosed with COVID-19 does not belong to the situation where the employer can unilaterally terminate the labor contract, and lacks a legal basis.

On the other hand, if the worker belongs to pneumonia patients, suspected patients and close contacts infected with Corona virus, the employer should also pay the worker’s remuneration during the period of isolation according to law. In summary, if a worker is diagnosed with COVID-19, the termination of the labor contract by the employer on this basis will constitute an illegal termination.

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