After two and a half months under lockdown China is on the path to recovery. As it emerges from self-imposed isolation, the country’s unprecedented public health response now offers a lesson for companies across Asia, which is that the most successful route to recovery is to prioritise the health, safety and wellbeing of employees, to be available and very responsible to clients, be pre-emptive about our business and finally stay connected with efficient communication.
As a global law firm, we are dealing with these issues directly ourselves in real-time all over the world. As companies consider how they can prepare for a return to business, law firms should act with purpose to help both their clients and employees take measured steps to overcome the immediate and longer-term challenges they face.
We can expect disruption for some time to come, which means the role of the trusted legal adviser has become essential in helping clients manage the short, medium and longer term responses to the crisis, while also supporting the planning and execution of their commercial goals. The situation has amplified the need to be vigilant for our clients and to give relevant and actionable advice in front of company executives who are facing difficult choices.
Law firms should provide a wide range of guidance for businesses and their legal teams and take steps to actively engage with them on these issues in this current environment. Very importantly, we must listen to our clients to understand how they want their lawyers to support them.
The DLA Piper Back to Business guide for clients operating in China addresses sector-specific concerns with insight into these issues and the key measures taken by government. With increased levels of remote working and because events have been postponed or cancelled, we are also hosting a series of online webinars for COVID-19 related issues. All guidance is shared online in our Coronavirus Resource Center, a central repository for companies across jurisdictions and industries.
Featured below are some of the key legal challenges businesses face, outlined in the DLA Piper Back to Business guide, as they resume operations and adapt to an economic and regulatory environment overshadowed by the impact of COVID-19. This advice provides a framework for how law firms can support company executives and navigate their journey back to business.
China Back to Business Guidance
Are there any legal requirements that employers must comply with before they send their people back to work and reopen physical premises?
The requirements to re-open physical premises vary among different locations and may change over time. Some of cities have stricter requirements and re-opening will need approval from the disease control authorities, while other locations may only require notification or filing with the building management. Employers may need to ask employees to fill-in certain forms to self-declare health status and contact/travel history. In Beijing and Shanghai, for example, the self-declaration is done through an app in individuals’ mobile phones, which needs to be scanned when entering buildings/office premises.
As we reopen post-COVID-19 lockdown, what are the health and safety obligations employers need to pay attention to around the physical premises?
The detailed requirements are changing over time. Some locations are stricter than others, eg generally speaking Beijing is stricter than Shanghai. Within a city, even different buildings may enforce the requirements differently. In general, employers are required to:
- Check the employee’s temperature daily;
- Set an isolation area in the work place;
- If the employee has suspected symptoms, the organisation will require the employee to be isolated in the isolation area;
- Report any suspected and confirmed cases to the department of disease control;
- Assist the employee with symptoms to go to the nearest infectious disease hospital;
- Close and sterilise affected areas;
- Prohibit other people from entering infected areas;
- Cooperate with the government’s disease control work, including assistance on tracking close contacts amid the outbreak of COVID-19; including following protocols on how to deal with the rest of the employees.
Some locations will still require employees to wear face masks while working in the office. In addition, employers may be required to provide education and infection information to its employees such as disease control materials as well as remind employees to cooperate with the organisation’s management and government led protocols.
Can employers ask employees to take medical tests or show test results or medical certificates before returning to work?
The organisation may collect information about their employees' travel history, travel plans, health conditions and close contacts of suspected patients during the outbreak period with the consent of the employee. Such information must be kept confidential and not used improperly. Employers should follow the principles of necessity and minimisation when collecting and processing personal data. Personal information may not be disclosed without the consent of the employees. Employers will need to implement strict technical and management measures to prevent privacy breaches or misuse of personal information.
Do the Cybersecurity Law, and related guidelines, including Personal Information Security Specification remain applicable during the business resumption period?
Yes, organisations should continue, as far as possible, to comply with relevant data protection laws. This said, there are circumstances in which, given the current situation, certain entities (in particular government and healthcare bodies) may be exempted from complying with all of the usual privacy obligations in the context of COVID-19 prevention and control.
Is consent still required to collect personal information in the context of COVID-19 prevention and control?
Yes, however organisations should first check to see whether they have already obtained sufficient consent from their employees at onboarding (for example, many organisations set out in their standard employee privacy notices/contracts that personal information may be collected for health control reasons). As noted above, certain organisations (such as government entities or healthcare bodies) may be permitted to collect and process personal information without consent in the context of COVID-19 prevention and
What privacy issues may arise by allowing our personnel to work from home? How can we manage these?
Working from home arrangements may increase the risks in privacy and cyber related incidents. It is, therefore, important that organisations ensure that there is proper communication and reminders to employees around maintaining compliance with internal protocols and procedures. Organisations should also ensure that its IT software and security systems are up-to-date and proper technical measures are adopted to minimise the occurrence and impact of any incident.