On 28 March 2020, the People’s Republic of China enacted an entry ban due to the novel coronavirus disease
Foreign nationals holding visas or residence permits valid on this date cannot enter with these documents
Can an employer terminate the employment relationship because the employee cannot enter China?
What is the underlying legal framework?
- Even if a visa has been issued, a contagious disease is a reason to prevent the entry of an individual
- The Chinese government can decide to impose general entry bans for whatever reason
- Border police officials have the power to impose administrative compulsion as an enforcement measure
- Foreign nationals have no access to legal remedies before their entry into the country
- Issuance of visas valid for entry is based on individual decisions on substantiated applications
What does it mean for foreign workers?
- Effects on employment relationships depend on whether these are based on Chinese or other law
- The Chinese government has adopted several provisions to protect Chinese and foreign workers
- Employment relationships cannot be terminated only because an employee has been diagnosed with COVID-19
- Unilateral termination of an employment relationship requires prior negotiations on contractual amendments
- Contractual adjustments typically require mutual agreements between employee and employer
- Entry to China is currently limited to “necessary” activities, e. g. high-level management
- Applicants need to explain the necessity of their entry in their visa application
- Unilateral terminations of employment relationships by the employer are difficult
- Adjustments to employment contracts, such as the reduction of salaries, require agreements
- Protection under Chinese labour law applies to Chinese and foreign workers in China
- Individual solutions based on mutual agreements are probably the best choice
Read the full story here:
Habicht, Jasper: Die aktuelle Einreisesperre in die Volksrepublik China aufgrund der Corona-Epidemie und daraus erwachsende Probleme im Kontext von Beschäftigungsverhältnissen, Zeitschrift für Chinesisches Recht 27(1), forthcoming.