COULD THE EMPLOYER REQUEST “TEMPORARY SUSPENSION OF WORKING” TO THE EMPLOYEE DUE TO COVID 19 PANDEMIC?

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Currently, under the heavy influence of the Covid 19 Pandemic, many companies faced many difficulties in production and business activities, some of them have to suspend operations or reduce production capacity to cope with the pandemic. Accordingly, the employment of the Employee is also affected. In such situations, could the Employer allow to request “Temporary suspension of working” with the Employees?

1. Is it allowed to request “Temporary suspension of working” with Employees due to Covid-19?

According to Clause 3, Article 99 of the Labor Code 2019: “In case the suspension of working is caused by an electricity or water supply issue that is not at the employer’s fault, or by a natural disaster, fire, dangerous epidemic, hostility, relocation requested by a competent authority, or for economic reasons, both parties shall negotiate the salary for temporary suspension of working …”.

Upon the above regulation, it can be considered that in case of dangerous epidemics, the Employer may request a temporarily stop working with the Employees and agree on the salary for temporarily stop working as prescribed by law.

Despite this, the current Labor Code does not have any specific guidance to understand what is “dangerous epidemic”. However, according to Clause 13, Article 2 of the Law on Prevention and ontrol of infectious diseases 2007: “Epidemic means the occurrence of an infectious disease in a number of persons exceeding the normal projected number of persons during a particular period as well as in a given area”. Infectious diseases are divided into the following classes:

  1. Class A, consisting of extremely dangerous infectious diseases that can transmit very rapidly and spread widely with high mortality rates or with unknown pathogenic agents;
  2. Class B, consisting of dangerous infectious diseases that can rapidly transmit and be fatal;
  3. Class C, consisting of less dangerous infectious diseases that are not rapidly transmittable.

Accordingly, on April 1st, 2020, the Prime Minister issued Decision No. 447/QD-TTg on identifying the Covid-19 pandemic as a Class A infectious disease (i.e. a particularly extremely dangerous infectious diseases that can transmit very rapidly and spread widely with high mortality rates or with unknown pathogenic agents).

In addition, in order to clarify the cases which employees can apply “temporary suspension of working” due to the Covid-19 and pay wages/salaries to employees, on July 15th, 2021, the Ministry of Labor, Invalids and Social Affairs issued Dispatch No. 264/QHLDTL-TL guiding the payment of wages/salaries for employees during the temporary suspension of working period due to the Covid-19 pandemic. Accordingly, Employees have to stop working due to Covid-19 in the following cases:

  1. The employees have to stop working during the quarantine period at the request of the competent authority;
  2. The employees have to stop working due to the lockdown of the workplace or residence at the request of the competent authority;
  3. The employees have to stop his/her job because the enterprise or part of the enterprise must suspend its operation for pandemic prevention and control at the request of the competent authority;
  4. The employees must stop working because the enterprise or part of the enterprise cannot operate because the enterprise’s owner or other employees of the enterprise or part of the enterprise is in quarantine period or cannot be returned to the business yet.

Upon the above-mentioned regulations, Covid 19 is currently a dangerous epidemic, the Employer shall be allowed to request “temporary suspension of working” as prescribed in Clause 3 Article 99 of the Labor Code 2019 and in some cases that have been specified in Official Dispatch No. 264/QHLDTL-TL of the Ministry of Labor, Invalids and Social Affairs as above.

2. Wages/salaries for employees during the temporary suspension of working period

According to Clause 3, Article 99 of the Labor Code 2019, the wages/salaries during the temporary suspension of working period shall be implemented as follows:

  1. If the suspension does not exceed 14 working days, the salary shall not fall below the statutory minimum wages;
  2. If the suspension is longer than 14 working days, the salary shall be negotiated by both parties and the salary for the first 14 days must not fall below the statutory minimum wages.