How does Coronavirus disease COVID 19 affect the rights of employees and employers?

Epidemic pneumonia caused by corona - COV 19 (nCov) virus is taking place very complicatedly, directly affecting the health and the work of the people. In this situation, in many areas that have infected people with this virus have suspended their study and work activities to avoid the spread of nCov. However, the biggest impact is that businesses and workers are forced to stop working due to disease. So how does the current law ensure the rights of workers and employers when their work is suspended due to nCov in particular and due to epidemics in general?

     1.Rights of employees.

Firstly, employees are still paid wages according to Clause 3, Article 98 of the Labor Code 2012, specifically: 

“Article 98. Wage in case of work suspension

If due to power or water incidents rather than the fault of the employer, employees or for other objective reasons such as natural calamity, fire, dangerous epidemic, enemy sabotage, relocation of the operation place upon request of a competent state agency, or for economic reasons, the wage for work suspension must be agreed by the two parties but must not be lower than the regional minimum wage stipulated by the Government”

Thus, in the current complicated disease situation, if the employer temporarily laid off the employee, the employee has the right to negotiate with the employer about the reasonable wage during the period of time quit and not be lower than the regional minimum wage. However if the employer and the employee agree on not getting paid during sick leaves, the employee will not be entitled, specifically as prescribed in Clause 3, Article 116 of the Labor code 2012:

“Article 116. Personal leave, unpaid leave

An employee may discuss and agree with the employer on unpaid leave in addition to the leaves specified in Clauses 1 and 2 of this Article”.

Secondly, in case the employer temporarily moves the employee to a different job than the prescribed labor contract, the employee shall be paid a full salary when moving to a new job. Specifically specified in Article 31 of Labor code 2012:

“Article 31. Assignment of employees to perform jobs which are not stated in labor contracts

When meeting with sudden difficulties such as natural disaster, fire or epidemic, or taking measures to prevent and deal with a working accident, an occupational disease or an electricity or water supply incident, or when due to business and production needs, the employer may temporarily assign an employee to perform a job which is not stated in the labor contract provided that the assignment does not exceed 60 accumulated workdays within one year, unless otherwise agreed by the employee.

….

The employee who performs the job as stipulated in Clause 1 of this Article is entitled to a wage for the new job; if the wage for the new job is lower than the previous wage, he/she is entitled to the previous wage for 30 working days. The wage for the new job must be at least 85% of the previous wage but not lower than the regional minimum wage stipulated by the Government”.

Thus, if the employee is moved to a new workplace because of the disease, he/she will still be entitled to the old salary in case the new job salary is lower than the old job salary within 30 days’ work. At the same time, the salary for the new job must be at least  85% of the old job salary but not lower than the regional minimum wage set by the Government.

Currently, the regional minimum wage is stipulated in Decree No 90/2019/NĐ-CP as follows: Region I: VND 4.420.000 per month; Region II: VND 3.920.000 per month; Region III: VND 3.430.000 per month; Region IV: VND 3.070.000 per month. Based on that, the employee deals with the employer to best ensure his rights and interests.

     2.Rights of employers.

Firstly, transfering temporarily workers to other jobs

Article 8 of Decree 05/2015 / ND-CP detailing Clause 1, Article 31 of the 2012 Labor Code stipulates:

"1. The employer is entitled to temporarily transfer the employee to do other jobs than the labor contract in the following cases:

Natural disasters, fires, epidemics;

... ”

However, Clause 3 of this Article also stipulates that the employer must only transfer the employee to another job for no more than 60 cumulative working days in a year. In case 60 days have passed, if the employee must continue to transfer to another job, he / she must obtain the written consent of the employee.

In case the employee does not agree to temporarily do another job but has to stop working, the employer must pay the job suspension salary as prescribed in Clause 1, Article 98 of the Labor Code .

Another note before transferring the employee to another job, the employer must notify the employee at least 03 working days in advance, clearly announce the temporary work duration and arrange suitable work. suitable with the health and gender of workers.

Secondly, unilaterally terminating the labor contract

The 2012 Labor Law, at Point c, Clause 1, Article 38, regulates that the employer has the right to unilaterally terminate the labor contract due to irresistible reason.

Specifically, the reason for force majeure here is listed in Clause 2, Article 12 of Decree No. 05/2015 / ND-CP , including:

“A, caused by enemy sabotage, epidemic;

... ”

Thus, in the event of an epidemic, the employer is entitled to dismiss the employee from his / her job, provided that he / she is informed in advance:

"- At least 45 days for labor contracts with indefinite term;

At least 30 days for a definite term labor contract;

At least 03 working days for a seasonal labor contract or a certain job with a term of fewer than 12 months. "

Thirdly, arranging workers to work overtime

Only in special cases, the employer has the right to require the employee to work overtime on any given day and the employee must not refuse. Such laws are designed to allow employers to compensate and overcome the consequences of epidemics. Specifically, in Clause 2, Article 107 of the 2012 Labor Code:

“The employer has the right to require the employee to work overtime on any given day and the employee must not refuse in case of performing work to protect human life, property of the agency, organizations and individuals in preventing and overcoming consequences of natural disasters, fires, epidemics and disasters. "