As the strong wind “fireworks” reached here last month and the Weather Forecast Agency of Shanghai issued an “orange” weather warning, the highest one during that period, I wrote an article “How to Pay Salaries of Persons Who Do Not Work on Monday Due to Strong Wind? - Exploration of Compliance Matters Connected with Leave Arrangements and Payment of Salaries in Strong Wind Seasons”, in which I summarize common leave arrangements during strong wind seasons for your reference. If a red warning, the only warning level higher than the orange warning is given in the future, documents now governing leave and salary arrangements of businesses in Shanghai include the Instructions on Suspension of Classes and Ways to Cope with Work Delay in Shanghai in the Face of Extremely Adverse Weather Conditions (amended in 2019) published by the General Office of the Government of Shanghai. What is this document? Does this document include special requirements about leave and salary arrangements of businesses in extremely adverse weather conditions?

Force and effect of the document

First, regarding its force and effect, the document was a general standard legal document issued by the General Office of the People’s Government of Shanghai, not a “regulation”. In fact, we should attach importance to and legally comply with requirements of this type of documents. It is possible that part of a document of this type be incorporated into a local regulation or government rule at a higher level. A document with the same subject was issued in Shanghai in 2014 and amended in 2019. The edition now in effect took effect from 1 August 2019. This document is intended to deal with cases where a “red” warning of the most harmful extremely adverse weather conditions (including strong wind, storm, heavy snow, ice on roads) is given, mainly including provisions relating to “suspension of classes” of schools and “approaches to work delay” for businesses. (The full text of “Instructions” is attached hereto)

Related provisions

Without a local legal document at a higher level, the Instructions implicitly and indirectly deals with the government requirement that businesses “stop working” in case of a “red” warning, providing, instead of stating that general businesses must “stop working” once a weather “red” warning is published, that “if a red weather warning is published in the city, except government agencies and enterprises and public institutions responsible for security and safety of the city, employers may stop production, working or operation temporarily or take other measures”. The word “may” means businesses have the discretion and the words “other measures” mean measures taken by businesses are not limited to stopping “production, working and operation”. In this case, the Instructions divides the section subtitled “approaches to work delay” into three paragraphs.

“Employer shall protect the safety of its employees by making and notifying employees of a specific plan in advance specifying persons who and circumstances where persons should or do not need to come to work and circumstances where production, work and operation should be resumed. When a red weather warning is published, Employer and its employees should act according to the specific plan. Employees who should come to work but cannot arrive at work on time should contact Employer promptly”.

“If Employee delays in work due to a red weather warning, Employer should not treat such delay as late arrival at work or absence from work, deduct their salary and benefits, use legal holidays or leaves as compensation or give them disciplinary or employment termination punishment for such delay”.

“If a red weather warning is given during working hours, Employer shall promptly stop outdoor work and big events such as work at a port or construction site that are not suitable to perform in such weather conditions in accordance with relevant laws and regulations”.

Comments

Based on the above provisions, I think,

1. As stated above, the Instructions does not require that businesses or employers completely stop working in case of a “red” warning. The Instructions may be intended to encourage businesses to reduce the number of staff coming to work and divide employees in advance into ones who should come to work and ones who do not need to come to work.

2. Requirements that “employers should not...” in the second part thereof attracts much attention. Please note that on the basis of the provision thereof that businesses are not ordered to stop working and advised to divide employees into ones who come and do not come to work, in logic, this provision should mean “work delay” of employees who “should come to work” due to extremely adverse weather conditions “should not” be deemed as late arrival at work, absence from work or a circumstance where salary deduction, extra leave or disciplinary punishment should be given. This is the reason why this circumstance is called “work delay”.

3. For authority reasons, as a general legal document, the Instructions does not include arrangements businesses must or must not make for and methods of payment of salaries of employees who are not required to come to work. In the absence of specific provisions, businesses still have authority to make arrangements to the extent permitted by law. Can employer’s failure to arrange employees for work be construed as “work delay due to a red weather warning”? In the context, I think, this phrase cannot be construed in this way. Considering the term “work delay” in the Instructions and the preceding paragraph stating businesses can divide employees into make different arrangements for different groups, it is advisable to limit persons who “should not...” to employees who are required to come to work but delay coming to work due to bad weather conditions. Some people may disagree.

Suggestions

1. As stated above, in case of a “red” weather warning, for businesses, I think, without a special document or requirement of the government or its department related to a specific “red” warning, leave and salary arrangements and compliance issues are applicable to that “red” warning because they are not forbidden by law. However, I suggest arrangements be made in advance with details of relevant issues clarified to avoid disputes. If the government (or its department) issues a document expressly setting out specific requirements about shutdown, leave and salary arrangements in case of a “red” warning, in general, these requirements should be noted and respected.

From the angle of a local legislator, I suggest, legislative authorities may include requirements about shutdown, leave and salary arrangements in extremely adverse weather conditions in local regulations at a higher level based on full and fair arguments, establish specific rules and clarify rights and obligations of parties involved so that employers and employees will have clearer legal expectations in similar cases.

See Instructions on Suspension of Classes and Ways to Cope With Work Delay in Shanghai in the Face of Extremely Adverse Weather Conditions (amended in 2019)

https://www.shanghai.gov.cn/nw44638/20200824/0001-44638_61354.html