China Employment Law Alert: Summer is HOT: Don’t Get Burned by Inadvertent Breach of Statutory Obligations!

This summer’s hot weather has hit China hard.  In northern provinces such as Henan and Shandong the temperature has reached 40 degrees Celsius (104 degrees Fahrenheit) and higher.

Regulators in China have recognized the risks that work in hot weather can pose.  In June 2012, in an effort to protect employees from health hazards caused by hot weather, the State Administration of Work Safety together with the former Ministry of Health, the Ministry of Human Resources and Social Security, and the All-China Federation of Trade Unions, promulgated the Administrative Measures for the Arrangement on Cooling and Sunstroke Prevention (“Administrative Measure”).  The Administrative Measure is a national regulation providing special protections and benefits for employees working in high temperatures.

Employers in China are advised to take the following measures to ensure compliance with the Administrative Measure’s requirements.

1.  Adjust the schedule for outdoor work according to the temperature.

When the temperature of a work environment reaches a certain level, employers should adjust the schedule for outdoor work.  The following table provides guidance on the legal requirements for working schedules in hot weather conditions.

Highest Temperature of a Day (“HTD”)	Legal Requirements for Working Schedule
HTD ≥ 40°C	- Suspend outdoor work.
40°C > HTD ≥ 37°C	- Do not require outdoor work in excess of six hours. - Suspend outdoor work during the three hours of the day when the temperature is highest (from 12:00 to 15:00 in Beijing).
37°C > HTD ≥ 35°C	- Arrange shifts for employees who work outdoors (“Outdoor Employees”). - Do not require overtime work outdoors.

 

Although work time may be reduced as a result of the above circumstances, employers may not reduce the salary or benefits of Outdoor Employees.

2.  Provide good working conditions.

Employers should provide good working conditions for employees working in hot environments.  This includes providing appropriate protective equipment, drinks and medicine to employees.  Employers should also provide a rest area with seats and good ventilation or cooling infrastructure such as air conditioning.

3.  Protect pregnant and young employees.

Special protections should be provided to pregnant and young employees.  According to the Administrative Measure, employers may not require pregnant or young employees to: (a) work outdoors on a day where the temperature reaches 35 degrees Celsius or higher; or (b) work in a place where the temperature is 33 degrees Celsius or higher.

4.  Pay hot weather subsidies.

The Administrative Measure requires employers to pay high temperature subsidies (“Subsidies”) to employees working in hot environments, but leaves the details to be determined by local authorities.  Currently, except for Hebei, Heilongjiang, Qinghai and Xizang, all provinces/municipalities have implemented rules regarding the requirements for Subsidies.  Provincial variations exist.

(a)     Who may receive subsidies?

Generally, employees working indoors (“Indoor Employees”) only receive Subsidies when the temperature in the workplace reaches 33 degrees Celsius or greater.

Subsidies for Outdoor Employees differ among municipalities.  For example, in Shanghai, employers must pay Subsidies to Outdoor Employees during a period specified by local regulations regardless of the outdoor temperature.  However, in Beijing and Guangdong, employees receive Subsidies during a specified period, but only when the highest temperature of a day in a particular month reaches 33 degrees Celsius or greater.

(b)     During what period Subsidies are payable?

The period during which hot weather Subsidies are payable differs from place to place.  In Shanghai, the payment period provided by local regulation is from June to September.  In Beijing, the payment period is from June to August, one month shorter than in Shanghai.  Other places such as Henan and Sichuan do not specify a payment period--as long as the temperature reaches the threshold provided by local regulations, employers must pay Subsidies to qualified employees.

(c)     How much are the Subsidies?

The Subsidy amounts also differ from place to place.  In Shanghai, employers must pay Subsidies to qualified employees (whether working outdoors or indoors) at the rate of RMB 200 per month during the payment period.  In Beijing, employers must pay Subsidies to qualified Outdoor Employees at the rate of RMB 180 per month; Indoor Employees receive Subsidies at a lower rate of RMB 120 per month.  In Tianjin, Subsidies are paid at the rate of RMB 24 per day.  How much an employer specifically needs to pay will depend on the weather conditions in that month.

Subsidies must be paid in cash, and may not be replaced by non-cash benefits such as drinks or medicine.

(d)     How and when are Subsidies paid?

The Administrative Measure does not prescribe a time within which Subsidies must be paid.  However, local authorities may establish time requirements.  For example, according to the human resources and social security bureau in Shanghai, Subsidies should be paid either in one lump sum before/ in June or every month from June to September.

(e)     Are there penalties for noncompliance?

The Administrative Measure does not impose penalties for noncompliance.  However, if employers fail to comply, local human resources and social security bureaus will order compliance, and some local regulations do establish penalties for employers who fail to provide applicable summer season entitlements.  For example, in Guangdong province, employers who fail to pay Subsidies may be subject to a fine of up to RMB 10,000.

If you would like further information on compliance with summer weather entitlements of employees please contact any member of our International Employment Law practice.