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.
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.
Quarantine & isolation
Employees returning to Taiwan may be quarantined or asked to isolate themselves due to a number of different reasons, for example previous travel to areas affected by the coronavirus or showing symptoms when passing through airport health screenings.
Being quarantined is legally considered as equivalent to being on sick leave, including all legal protections and rights afforded to the employee. The quarantine notice issued by responsible authorities in such a case acts as the medical certificate.
In case of isolation, also known as self-quarantine, returning employees will be asked to stay at home, minimising contact with other individuals for 14 days. During this period they are allowed to work remotely (from home) but should not leave their homes and will be required to report to local authorities. Depending on the individual case and reason for travel, businesses may consider various options when it comes to the legal structuring of this absence from work. These may include treating the absence as paid sick leave, unpaid leave or any other mutually agreed upon structuring.
The Legislative Yuan passed the Special Act on Covid-19 Prevention, Relief and Restoration (“Special Act”) on 25 February with retroactive application starting 15 January. According to the Special Act, an employer should grant such leave when the employee is placed in self-quarantine or another similar isolation situation. The employer is not allowed to treat this as an absence from work or force the employee to use their own personal leave. The employer may also not treat this leave as non-attendance and adversely affect the employees' full-attendance bonus payments, nor terminate the employment or bring about any other unfavourable arrangement. Additionally, if the employee is not afforded pay for the duration of his leave, he is entitled to apply for compensation from the Taiwan health authorities. Furthermore, employers who pay their employees for such leave may be entitled to tax breaks under the Special Act.
In addition, it is important to note that the government in Taiwan is imposing fines of up to NT$1,000,000 for individuals who violate home isolation or home quarantine regulations.
With the extension of school winter break until 25 February, parents were handed the unforeseen need to organise child care on short notice for an extended period of time. The Taiwan government directed that businesses must accommodate their employees’ needs for time off due to this extension. Employees who have children under the age of 12 were entitled to take “Disease Prevention Childcare Leave”, with such leave not included in the days of legally mandated unpaid personal leave of 14 days.
This leave could not be deemed as an absence from work or have any adverse effect on employee bonus payments or performance evaluations. Whether or not pay was afforded for this duration was left up to the individual employment relationship and highly depends on governing contracts. Under the Special Act, employees who were granted Disease Prevention Childcare Leave without pay may be entitled to compensation. Additionally, employers who afforded pay during Disease Prevention Childcare Leave may be entitled to tax breaks.
Fines between NT$20,000 and NT$1,000,000 were imposed if an employer refused to provide Disease Prevention Childcare Leave to employees who were entitled to it.
The Ministry of Education issued guidelines regarding future suspension of classes and school closures in case of localized outbreaks. According to these guidelines, if either a student or a teacher is diagnosed with Covid-19, then all classes they would attend will be suspended for 14 days. If a school or other institution has more than one case of Covid-19, then that whole institution will be closed for the same duration. Additionally, all schools kindergarten through high school within a township, city or district will be shut down for two weeks if one-third or more of them have had cases of Covid-19. It is not yet clear if this last rule will also apply to colleges and universities.
In case of class suspension or school closures, the Taiwan government is likely to apply the same directive regarding Disease Prevention Childcare Leave as they did with the extension of school winter break. Additionally, employers will have to consider whether the parents should stay at home until it is clear that their children are not infected with the coronavirus.
Working from home and forced leave
Should the risk of infection in Taiwan increase, businesses may consider asking employees to work remotely. This could be an effective measure in order to reduce the spread of disease. However, certain jobs must be performed on-site, disqualifying remote work as a potential prevention measure. In this case, businesses might consider putting employees on fully or partially paid; or even unpaid leave. However, employees generally have a right to work, even if they are granted pay. Therefore, whether or not a business can force their employees to go on leave and under what conditions that is possible depends on the nature of work, the level of risk at the time and the governing contract.
Business travel to Taiwan
At this point in time, the risk of contracting Covid-19 on a business trip to Taiwan is low and travel to Taiwan is considered safe. However, it is important for businesses to keep Taiwanese travel restrictions in mind when organising trips. Depending on previous travel, employees may be denied entry into Taiwan upon arrival or may be asked to self-quarantine at their hotel for 14 days. Restrictions also apply to travellers, who merely had a layover at an airport in an affected area. Additionally, travellers from other regions affected by the outbreak such as Singapore will be asked to self-monitor their health or, if they show symptoms commonly associated with Covid-19, self-quarantine. Businesses should therefore book direct flights whenever possible and check the official status on coronavirus-related entry restrictions before travelling, as they may change at any time.
Despite the currently low risk of contracting the coronavirus in Taiwan, certain countries (Italy, UK, Mongolia and Bangladesh) have started implementing measures with a direct impact for people with a Taiwan travel history. Depending on how this outbreak progresses, these measures may increase. It is therefore important for travellers to not only consider Taiwan’s entry restrictions but also their home countries’ regulations before departure.
Heather Hsiao is a partner at Eiger, helping manage the firm’s corporate and employment practices.
Michael Werner is a senior associate at Eiger, specializing in corporate and HR matters.
Alice Chen is a paralegal at Eiger, specializing in corporate work.
David Rosenthal is a trainee at Eiger, assisting with legal research and translations.