Covid-19: Obligations for employers in Taiwan

By Heather Hsiao, Michael Werner, Alice Chen & David Rosenthal

As the number of people infected by the 2019 novel coronavirus (Covid-19) continues to rise all across the globe, employers are facing a number of challenges. This article takes a look at the legal obligations and offers some advice to employers.

Employer duty of care

Employers in Taiwan have a general duty of care towards their employees as outlined in the Labor Standards Act and other relevant laws. This includes preventing and mitigating any health risks employees may face in the course of their work as well as providing them with a safe working environment. If an employer fails this duty of care, he or she may face liability for any damages incurred by their employee.

In order to ensure the safety of their employees in connection with the outbreak, employers may consider taking a number of measures commensurate to the individual infection risk level. Currently appropriate measures may include:

• Issuing companywide policies designed to prevent the spread of infection, including spreading awareness on best hygiene practice among employees, as well as correct information on the virus;
• Limiting business travel, especially to affected areas;
• Ensuring sick employees stay at home;
• Providing sanitary products, such as hand sanitiser.

It is important to remember that prevention measures employers take may infringe on the rights of their employees - especially their rights to work and privacy. In this case there must be careful consideration of the employees’ rights, the infection risk level and any possibilities in order to lower the burden on the employee’s rights. For example, if you subject your employees to mandatory temperature checks, depending on the infection risk level that may be a suitable measure. However, collecting employees’ temperatures - i.e. health data - infringes upon the employees’ right to privacy and may only be done while complying with the Personal Data Protection Act.

Work in China

Taiwan’s Ministry of Labor recently issued guidelines on work in China in light of the recent virus outbreak. Employers should consider employee health and safety as their first priority. Unless absolutely necessary, employers should avoid assigning employees to work in China. Alternatively, they can work remotely in order to maintain business operations, or negotiate with employees to adjust workplace and work content. Also, employers may ask employees who work in China to return to Taiwan in order to reduce the number of employees assigned in China. Employers should consult with employees to change to other means of providing services, such as remotely via video conferences and e-mail, while still being required to pay wages. If employers force employees to work in or travel to China, employee rights may be violated. In this case, an employee may have a right to terminate the employment agreement and be entitled to severance pay.

Also according to the guide, if employers still need to assign someone to work in China, they should first assess the employee’s health status. Additionally, they should avoid assigning employees with underlying conditions, such as chronic lung disease (including asthma) and cardiovascular diseases. Moreover, employers should educate and train employees on infection prevention practices, such as cleaning, respiratory hygiene, self-health monitoring, and provide equipment such as masks and personal disinfection products. Additionally, they should take temperature measurements, strengthen work area cleaning, disinfection, and maintain proper ventilation. In cases where employers fail these duties, employees have the right to refuse assignments to China.

Overtime work

Due to the coronavirus outbreak, medical institutions and factories that produce epidemic prevention equipment, such as masks and disinfectants, have been faced with a sudden, drastic increase in demand. Similarly, logistics companies and distributors are also being asked to cooperate with immediate delivery and supply of these necessary products. This may result in certain employees having to work overtime. Pursuant to Articles 32.4 and 40 of the Labor Standards Act, employers may, in case of “an act of God, an accident, or an unexpected event,” extend employee working hours. Taiwan’s Ministry of Labor therefore issued an interpretation letter (No. 1090130090) regarding overtime work during the coronavirus outbreak.

• Article 32.4 of Labor Standards Act:
  “Due to the occurrence of an act of God, an accident, or an unexpected event and when an employer has a necessity to have his/her employee to perform the work besides regular working hours, may extend the working hours. However, the employer shall notify the labor union within twentyfour hours after the beginning of the extension. If there is no labor union, shall report it to the local competent authority for record. Subsequent to the over time, the employer shall offer workers suitable time off.”

This article applies to overtime work on regular working days, as well as on rest days. If employers require employees to work overtime under this article, employers must calculate and pay the accrued overtime wage according to Article 24 of the Labor Standards Act. Overtime accrued under Article 32.4 is not subject to the 12 hour daily limit on work, nor is it subject to the monthly maximum of 46 overtime working hours. However, employers must notify the labor union within 24 hours of beginning the extension. Without the presence of a labor union, they must instead report it to the local competent authority for recordation. Subsequent to the overtime, the employer must offer employees suitable time off.

• Article 40 of Labor Standards Act:
  “An employer may require workers to suspend all leaves of absence referred to in Articles 36 to 38, if an act of God, an accident or unexpected event requires continuance of work; provided, however, that the worker concerned shall receive wages at double the regular rate for work during the suspended leave, and then also be granted leave to make up for the suspended leave of absence.
  In respect of the suspended leaves of absence referred to in the preceding paragraph, the employer shall, within twentyfour hours after the end of suspension, file a report stating details and reasons with the local competent authorities for the approval and recordation of the suspension.”

The extended working hours of this article apply to “holidays”, which includes national holidays, annual paid leave, and regular leave. In case of an “act of God, an accident or unexpected event”, employers can suspend employee annual or regular leave, and instead require them to continue working. In this case, employers do not have to adhere to the principle that employees shall not work for more than six days consecutively. Overtime accrued under Article 40 is also not subject to the 12 hour daily limit on work, nor is it subject to the monthly maximum of 46 overtime working hours. However, employers must notify the local competent authorities for recordation within 24 hours of the beginning of the extension. Employees affected by the suspension shall receive wages at double the regular rate for work during the suspended leave, and then shall also be granted leave to make up for the suspended leave of absence.