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Comprehensive Rest Days Adjustment During COVID-19 Epidemic──Four practical points for the application of comprehensive adjustment of rest days

2020-03-16

Author: Ariana Qi

Translator: Normand Gauthier

The current situation of the COVID-19 epidemic situation is still severe, many employees still have some difficulties in returning to work, and some enterprises themselves have encountered difficulties in production and operation. To this end, a series of measures have been introduced at the national and local levels to guide enterprises in handling the labor issue of flexibly, including using paid annual leave, applying for a comprehensive working hour system, and comprehensively adjusting rest days during the year. Here, we consider the comprehensive adjustment of rest days during the year a flexible employment measures, which means, in the event that the epidemic situation has prevented employees from returning to work and they cannot work from home or the company has difficulties in production and operation, the company will arrange the employees to use the rest days in advance; then arrange for employees to make up shifts if the conditions are met.

1. Why choose to apply the comprehensive adjustment of rest days?
For enterprises, compared with the use of paid annual leave and the application of a comprehensive work system, comprehensively adjusting rest days during the year (hereinafter referred to as "rest days adjustment") is more practical. First of all, as far as the application of the comprehensive working hours system is concerned, although the city's administrative review and approval authorities (such as the Suzhou Bureau of Human Resources and Social Security) have simplified the approval materials for comprehensive work hours during the epidemic and reduced the time limit for approval; enterprises still need to submit material including trade union’s opinions or workers’ congress’s written opinion resolutions, thus there are certain limitations in the procedure. Secondly, as far as paid annual leave is concerned, if an employee cannot return to work and cannot work at home for a long period, once the paid annual leave is used up, the treatment of the remaining time becomes a problem.
 
So, in practice, how can the company arrange the rest days adjustment, so that they can not only achieve compliance, but also achieve the purpose of balancing employees' working hours and reducing the company's labor costs? Let's begin with the basis of applying the rest day adjustment.

2. What is the basis for the comprehensive adjustment of rest days?
Rest days adjustment means that the original work schedule of Monday to Friday as working days, Saturday and Sunday as rest days will be broken; employees may face more than five days of work a week when they make up for the missed working days. In this regard, if employees question the basis for arranging rest days adjustments, how can companies respond?

We believe that the basis for comprehensive adjustment of rest days comes from laws and regulations and related policies promulgated by various authorities during the epidemic. First, considering the provisions of Articles 36 and 38 of the Labor Law of the PRC and the provisions of Articles 3 and 7 of the State Council's Provisions on Working Hours of Employees, the working hours of standard working hours should be no more than 8 hours per day , no more than 40 hours of work per week, and at least one day of rest per week. In addition, unlike state agencies and institutions, enterprises can also flexibly arrange weekly rest days according to actual conditions. According to the aforementioned laws and regulations, it would meet their requirements if a company uses rest day adjustment, arranging employees to rest on a working day of a week, and after the conditions for resumption of work are available, arranging for employees to make up shifts on the rest of the week or weeks following the resumption (but least one day off per week).  It is on this basis, and in the special context of the epidemic, that Beijing, Shanghai, Shenzhen, Wuxi, Changsha and other places have issued relevant policies that make it clear that enterprises can adjust the use of rest days. For example, Shanghai stipulates that “due to the impact of the epidemic, enterprises with difficulty in production and operation can stabilize their jobs by adjusting salary, rotating shifts, flexible working hours, and comprehensively adjusting the use of rest days in the year. The specific methods are determined through consultation between the enterprise and employees.” Therefore, the policy basis is sufficient for the company arranges rest days adjustment for employees.

*: As of the date of writing this article, the policies regarding the rest days adjustment retrieved through public channels are:
3. What are the practical points of using the comprehensive adjustment of rest days?
After the enterprise knows the basis of applying comprehensive adjustment of rest days for, the next thing to consider is the issue of specific implementation. In this regard, we have summarized the following practical points for business reference:

Point one: clearly define the prerequisites and the scope of employees for the use of comprehensive adjustments of rest days
1. Confirm whether the prerequisites for the application of comprehensive adjustment of rest days have been met

Some local policies have made some prerequisites for the application rest days adjustment. For example, Wuxi specifically listed the four situations in which the rest days can be comprehensively adjusted: "1. Enterprises that do not have the conditions to resume work and resume business due to the epidemic prevention and control; 2. Employees who are in their homes during the period of quarantine; 3. Employees who are unable to work normally due to traffic control and other reasons; 4. Other employees who have valid reasons for not returning to tin in time due to the outbreak; and 5. Other applicable situations during epidemic prevention and control. If the above opinions are otherwise stipulated by the state and the province, those provisions shall prevail." In another example, Changsha and Pingxiang currently stipulate that the main body applicable to the rest days adjustment is limited to local SMEs. Therefore, we recommend that enterprises check the local policies and regulations before applying the rest days adjustment, and arrange the rest day adjustment only if the applicable prerequisites are met.

2. Comprehensive assessment to evaluate the scope of employees who need comprehensive adjustments of rest days
First of all, companies need to be clear that the use of rest days for comprehensive adjustment only needs to be applied to employees under the standard working hours system. This is because employees with comprehensive and flexible working hours systems have adopted the methods of centralized work, centralized rest, rest in turn/by arrangement, and flexible working hours to ensure the completion of their leave and vacation rights and the completion of production and work tasks. Thus, there is no need to use the rest days adjustment.

Next, it is necessary to consider whether it is suitable to arrange a rest days adjustment in combination with the employee’s job characteristics. For example, traders in financial institutions are not suitable for the rest day adjustment, because they can only work normally when the financial market is open for trading from Monday to Friday. After using the rest day in advance, the follow-up work on the weekend will not be of substantial significance.

Point Two: Prepare properly before using the comprehensive adjustment of rest days
1. Formulate the implementation plan for the comprehensive adjustment of rest days
Before arranging rest days for employees to make comprehensive adjustments, the company needs to develop an implementation plan in advance. On the one hand, companies need to estimate the various situations that may occur during the rest day of comprehensive adjustment and use, and prepare processing methods and response plans. On the other hand, companies need to carry out democratic procedures or communicate with employees according to the formulated plans; and after the democratic procedures or communications are completed, follow the established plans to avoid differences between the implementation details and employees and cause disputes. We recommend that the content of the implementation plan may include the scope of employees to which the implementation plan is applicable, the applicable time range, the process of concentrated use of rest days and follow-up shifts, and salary calculation matters.

2. Launch democratic procedures or consult with employees

Democratic procedures or consult directly with employees?
As the use of rest days for comprehensive adjustments is a major matter involving the vital interests of employees, according to the provisions of Article 4 of the Labor Contract Law of the PRC, democratic consultation and announcement procedures are required. The democratic consultation process includes the following three steps: 1) inform all employees of the implementation plan and solicit their opinions; 2) negotiate with the employees’ representative or the trade union; 3) announce the final implementation plan of the enterprise to all employees. However, under the special circumstances of the epidemic, enterprises need to apply flexible labor relations policy as soon as possible. Although democratic consultation can be conducted through video, telephone, and WeChat group meetings, the steps are still tedious and time-consuming. Therefore, we believe that if the proportion of employees who need to rest days adjustment to the total number of employees in the company is small, then the company can also consider replacing the democratic process by directly consulting with the employees involved in the implementation of the plan.

Negotiating with employees in three steps
In order to reduce the difficulty of communicating with employees and enable the comprehensive use of rest days to smoothly progress, companies can communicate with employees through the following three steps:
Step 1: Before the communication, send the content of the implementation plan to the employees in advance by email or WeChat, and ask them to read it.
Step 2: Fully communicate with employees, explain the basis of the plan, explain the content of the plan, so that employees can understand the difficulties of the company and work together with the company. If the employee disagrees, renegotiate after giving them some consideration.
At the same time, during the communication process, companies need to pay attention to retaining evidence of communication, such as telephone recordings and WeChat communication records.
Step 3: After reaching an agreement through negotiation, ask employees to confirm and agree to the implementation plan through WeChat, email or Office Automation system as soon as possible.
Point 3: Keep records, arrange rest days and make-up shifts
1. Pay attention to the duration of application of the policy of comprehensive adjustment of rest days
The rest days adjustment is a measure to deal with labor relations with flexibility during the special period of the epidemic. Thus, pay attention to the applicable period when it is implemented; that is, the range of time that can be arranged for eligible employees to use their rest days of the current year in advance. In this regard, the enterprise can take the validity period specified in the relevant local policies as the standard, and arrange the rest days of the employees within the validity period. For example, Shanghai has clearly stated in the relevant policy that "the validity period is extended to 3 months after the end of the COVID-19 epidemic"; while Shenzhen stipulates that the policy is valid until December 31, 2020. In the case that the local policy does not specify the validity period, we believe that under the impact of the epidemic, if employees still do not have the conditions to return to work and cannot work from home, or the enterprise still has difficulties in production and operation, the company can arrange rest days adjustment.
 
2. Arrange for employees to use rest days in advance and keep relevant records
The use of rest days in advance by employees during the epidemic period will involve future make-up shifts and salary calculations. Therefore, companies must keep records of the use of rest days by employees as a basis for make-up shifts and salary calculations. In this regard, we suggest that the company can arrange the date of the employee's rest day in advance according to the production and operation situation of the company or the number of days when the employee cannot return to work. Then, the aforementioned arrangements are sent to employees via email or WeChat, and the employees responded to confirm, and the company makes relevant records accordingly. After a period of time (for example, one month), employees are asked to confirm the total number of days of rest days they actually use, and the company updates the records of employees' use of rest days accordingly.

3. Comprehensively evaluate the workload and position of employees, and make reasonable arrangements for make-up shifts
Regarding when to arrange the employees’ make-up shifts, we believe that enterprises can comprehensively evaluate the workload of employees during the year, and arrange the make-up date during the "busy season" of employees or during periods of overtime. At the same time, because the comprehensive adjustment uses the "current year" rest days, we recommend that companies try to arrange for employees to complete make-up shifts during the current year.

For example, a company arranges that an employee use a four-day rest day in advance from February 18 to February 21, and the company's busy season is usually in the second quarter of each year. Then, after the conditions for resumption of work are met, the company can arrange the employee’s make-up shift on weekends from April to June, and make up for the four advanced rest days. During this period, the company guarantees that employees can rest at least one day a week.

Point Four: Determine how to calculate the salary after the rest day
The use of rest days adjustment is a comprehensive adjustment arrangement for rest days and working days. The essence is to balance the total working hours of employees during the year and not overtime, so there is no need to pay overtime. When an enterprise calculates the salaries of employees on rest days for comprehensive adjustment, it can be calculated in one of the following two ways:

Method 1: Pay the salary according to the normal monthly payable amount of the employee
Taking an employee's rest day in February as an example, if the employee's salary is paid according to the normal monthly payable amount, that is, the employee's normal monthly salary amount will be paid in February, not deducting the employee’s salary because he or she used rest days in advance. When the employee makes up the shift in the following months, his or her salary will also be paid according to the normal monthly payable amount, without increasing the payable amount due to the employee's make-up shift.

Method 2: Calculate the salary according to the days the employee actually worked
If the salary is calculated based on the days the employee actually worked, then regardless of whether the employee uses the rest day in advance or work make-up shift in the following months, the employee's salary for each month should be calculated and paid according to the number of actual days the employee worked in that month, which is:

The normal monthly salary of the employee ÷ 21.75 × the actual number of days worked in that month = the salary that should be paid in that month

When the above two methods of salary calculation are compared, the advantage of method 1 is that it reduces the workload of salary calculation. In addition, because employees' wages do not vary due to the use of rest days adjustment, this type of pay calculation is more easily accepted by employees. However, this calculation method also has certain problems. If the employee leaves the company before completing the make-up shifts, the company needs to deduct the extra salary paid to the employee. Once the employee's monthly salary has been paid before leaving the company, it will be difficult for the company to ask the employee to return the extra salary.

Therefore, if the second method is selected, it will be helpful to prevent the aforementioned problem of "overpay". However, the disadvantage of this method is that due to the specific arrangements for the use of rest days adjustment for each employee may not be the same, so the company needs to calculate the salaries of each employee separately, and the workload is heavy. In addition, since the calculation of wages based on the actual working day will result in differences in the salary of each month, the company also needs to explain to the employees how the salary is calculated when employees raise questions.

For the above two calculation methods, the enterprise may choose one of them after taking into consideration its own situation and weighing the advantages and disadvantages, set out the method in the implementation plan, and implement it accordingly.

In summary, compliance operations will help enterprises implement comprehensive adjustment of the rest days. However, we still need to consider that although there is sufficient policy basis for the rest days adjustment, it is still a special policy under the epidemic situation. In the implementation process, in addition to the implementation of laws and regulations and local policies, enterprises need to communicate with employees to work toward a win-win resolution, in order to reach the goal of mutual benefit, and to support each other in overcoming difficulties.

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