In view of this problem, according to the relevant laws, regulations and policies, there are mainly the following three opinions:
1. The enterprise shall not terminate the labor contract with its employees.
The enterprise cannot terminate the labor contract because the workers fail to return to work on time due to epidemic prevention and control.
1. The superior policy has clear provisions. Notice of General Office of Ministry of Human Resources and Social Security on Properly Handling Labor Relations during the Prevention and Control of Pneumonia Infected in novel coronavirus: "During the isolation treatment or medical observation of patients, suspected patients and close contacts infected with pneumonia in novel coronavirus, employees of enterprises who cannot provide normal labor due to isolation measures or other emergency measures taken by the government may not terminate their labor contracts according to Articles 40 and 41 of the Labor Contract Law", that is, enterprises may not terminate their labor contracts due to illness of employees, difficulties in production and operation and major changes in objective conditions.
2. It is not in compliance with the statutory situation. Article 39 of the Labor Contract Law: "The employer may terminate the labor contract if the employee is under any of the following circumstances: if it is proved that the employee does not meet the employment conditions during the probation period; Seriously violating the rules and regulations of the employing unit; Serious dereliction of duty, graft, causing great damage to the employer; The laborer establishes labor relations with other employers at the same time, which has a serious impact on the completion of the work tasks of the unit, or refuses to make corrections after being put forward by the employer; The labor contract is invalid due to the circumstances specified in Item 1 of Paragraph 1 of Article 26 of this Law; Being investigated for criminal responsibility according to law. " Under the current circumstances, it is obviously not the statutory situation that the employer can terminate the labor contract as stipulated in the Labor Contract Law that the workers cannot return to work on time due to force majeure such as national epidemic prevention and control measures. Therefore, it is suspected that the employer can terminate the labor contract accordingly.
3. If the labor contract expires, it shall be postponed. According to the Notice of the General Office of Ministry of Human Resources and Social Security on Properly Handling Labor Relations during the Prevention and Control of Pneumonia Infection in novel coronavirus: "novel coronavirus patients with pneumonia, suspected patients and close contacts, and employees of enterprises who cannot provide normal labor due to isolation measures or other emergency measures taken by the government, if the labor contract expires during the isolation treatment or medical observation period, it shall be postponed to the medical treatment period, medical observation period, isolation period or the expiration of emergency measures taken by the government."
Second, workers cannot bear civil liability.
If the laborer fails to return to the enterprise to provide labor services on time according to the labor contract signed with the enterprise due to epidemic prevention and control, thus causing losses to the enterprise, the laborer may not bear civil liability, and the enterprise cannot hold the laborer liable for breach of contract accordingly. The main reasons are:
1. Epidemic prevention and control is force majeure. Paragraph 2 of Article 180 of the General Principles of Civil Law stipulates: "Force majeure refers to an objective situation that cannot be foreseen, avoided and overcome"; Article 117 of the Contract Law stipulates: "Force Majeure as mentioned in this Law refers to unforeseeable, unavoidable and insurmountable objective circumstances." The epidemic situation in COVID-19 is very serious, and the state has taken severe measures such as traffic control to prevent and control the epidemic, effectively curbing the spread of the epidemic. All kinds of prevention and control measures taken by the state are extraordinary measures taken in an emergency, which are in line with the characteristics of force majeure stipulated by the General Principles of Civil Law, Contract Law and other relevant laws. Therefore, epidemic prevention and control is force majeure.
2. The law clearly stipulates that. Article 180 of the General Principles of Civil Law stipulates: "Those who cannot perform their civil obligations due to force majeure shall not bear civil liability"; Article 117 of the Contract Law stipulates: "If the contract cannot be performed due to force majeure, it shall be exempted from liability in part or in whole according to the influence of force majeure". If traffic control measures are taken for epidemic prevention and control, workers can't return to work on time, and can't fulfill the obligation of providing labor stipulated in the labor contract, and the losses caused to the enterprise are due to force majeure, so they can be exempted from liability and don't have to bear civil liability. Therefore, enterprises cannot require workers to bear the liability for breach of contract.
3. Most people have a clear answer. In order to promote the prevention and control of epidemic situation in COVID-19 in an orderly manner according to law, the responsible persons of relevant departments of the National People's Congress Standing Committee (NPCSC) Legal Work Committee answered the legal questions of general concern in epidemic prevention and control on June 5438+00. Regarding the nature of epidemic prevention and control and related legal responsibilities, Zang Tiewei, spokesman of the National People's Congress Standing Committee (NPCSC) Law Commission and director of the research office, replied: "In order to protect public health, the government has also taken corresponding epidemic prevention and control measures. For the parties who cannot perform the contract, it is an unforeseeable, unavoidable and insurmountable force majeure. According to the relevant provisions of the Contract Law, if the contract cannot be performed due to force majeure, the liability shall be exempted in part or in whole according to the influence of force majeure, unless otherwise stipulated by law. "
Third, workers can defend their rights according to law.
It is neither in line with the law nor the policy of the higher authorities to terminate the labor contract with the workers or ask them to bear the liability for compensation for breach of contract because they fail to return to work on time for epidemic prevention and control. If this happens, the laborer can complain to the labor inspection department where the enterprise is located, or apply for arbitration to the labor dispute arbitration committee where the labor contract is performed or where the employer is located according to the Labor Dispute Mediation and Arbitration Law. If employees refuse to accept arbitration, they can also bring a lawsuit to the people's court to safeguard their legitimate rights and interests.