Employer’s Granting of Leave and Payment of Wages During Novel Coronavirus Outbreak (Taiwan)

Fang-Wei Lin[1]

Since the novel coronavirus (COVID-19) outbreakin Wuhan last December, the epidemic has become a global pandemic.  To thoroughly carry out epidemic prevention, not only the government has taken all kinds of epidemic quarantine isolation measures pursuant to law,[2] but also the employers may expect the employees to conduct home isolation or voluntary self-isolation in order to ensure the health of the employees in workplaces.  During this period, it is necessary to clarify if an employer is required to pay wages to employees who take leave for reasons relating to the epidemic.

This article will discuss the most common leave reasons during the COVID-19 outbreak and analyze the types of leave that should be granted by employers and how the employees’ wages should be paid under various specific circumstances.  In the end, a table is prepared to summarize all types of leave with or without pay for reference.

I. Leave taken to address epidemic prevention needs

(1) Personnel who are required to be enter certain sites for epidemic prevention by the competent authority

Under the Communicable Disease Control Act, if it is necessary during an epidemic outbreak for personnel from a local competent authority to access public or private premises or means of transportation to conduct epidemic prevention in conjunction with personnel from relevant authorities such as police officers, the owners, managers or users of the premises or means of transportation may be notified to be present (e.g., the presence of factory or cruise ship personnel to accommodate the access to the factory or cruise ship for disinfection by competent authorities.) The employers shall grant official leave with pay to employees who attend such events (Article 38 of the Communicable Disease Control Act and Article 8 of the Regulations of Leave-taking of Workers).

1. Those who are required by the competent authority to be isolated or quarantined or who have to take care of their family members who cannot take care of themselves since they are isolated or quarantined

i. Reasons attributable to the employers

If an employee is required by the competent authority to be isolated or quarantined for reasons attributable to the employer (for example, the dispatch of the employee on a business trip to an area which the employer obviously knows will subject the employee to the competent authority’s requirement of isolation and quarantine), the employer shall grant a quarantine and isolation leave with pay to the employee during the period when the employee is not available for work and shall not handle this matter by other types of leave or take any other measure unfavorable to the employee (Article 3, Paragraph 3 of the Special Statute for the Prevention and Control of Severe Special Infectious Pneumonia and the Relief and Stimulation Measures and Article 267 of the Civil Code).

ii. Reasons not attributable to the employers

If an employee is required by the competent authority to be isolated or quarantined or has to take care of isolated family members (e.g., the employee’s own travel to an infected area and followed by the requirement from the competent authority to be quarantined at home for 14 days after his/her return to Taiwan), the employer is still required to grant a quarantine and isolation leave to the employee and shall not handle this matter with another type of leave or take any other measure unfavorable to the employee.  However, under the circumstances where the employer is not held accountable, the law does not compel the employer to pay wages to the employee.  If the employee does not receive the wages, the employee may apply to the government for epidemic prevention compensation.  If the employer is willing to pay wages to the employee, the employer will be entitled to tax incentives—deduct the wages paid to the employee during his/her leave of absence by 200% of the wages when filing its annual income tax return (Article 3, Paragraphs 1 and 3 and Article 4, Paragraph 1 of the Special Statute for the Prevention and Control of Severe Special Infectious Pneumonia and the Relief and Stimulation Measures).

2. Those who are not required by the competent authority

i. Home isolation under the employer’s requirement

If an employee is not required by the competent authority to be isolated or quarantined (e.g., the competent authority only requires self-health management for 14 days) and is willing to work but is required by the employer to be isolated at home due to health concerns, since the employer unilaterally refuses the employee’s services, the employer shall pay full wages to the employee, and the employee is not subsequently obligated to supplement the services (Article 487 of the Civil Code).

ii. Leave taken by an employee to be isolated not at the request of the competent authority

If an employee is not required by the competent authority to be isolated or quarantined at home but takes a leave of absence of his/her own accord to stay home (e.g., the competent authority only requires self-health management for 14 days), the employee shall follow the leave-taking provisions of the employer’s leave-taking rules or the Labor Standards Act, and the employer shall pay corresponding wages based on the types of leave taken by the employee (ordinary personal leave, sick leave, annual leave, etc.) (Article 4 of the Regulations of Leave-taking of Workers).

iii. Leave taken by employees to take care of their children due to “postponed opening” or “class suspension” of their schools[3]

To address epidemic prevention needs, the Central Epidemic Command Center decided a while ago that the opening of schools below the level of senior high school would be postponed from February 11 to February 25, and that if parents need to take care of their children[4] during the period of “postponed school opening” during February 11 through February 24, one of the parents[5] may take a disease prevention childcare leave.  The employers of the parents shall grant the leave and shall not treat that as absenteeism or force them to take personal leave or other types of leave.  Nor shall they deduct the attendance bonuses, terminate the employment or handle such matter in any manner unfavorable to the employees.  However, such measure does not compel the employers to pay wages.

After school begins, the Central Epidemic Command Center has further expanded the scope of the first wave of the disease prevention childcare leave.  For schools and institutions that meet the criteria for “class suspension of schools to cope with outbreaks of ‘ COVID-19,” it is stipulated that parents who need to care for their school children during the “class suspension” period may take a disease prevention childcare leave, and the targets of the application, wages and other relevant rights and interests are governed by the same requirements for the first wave disease prevention childcare leave (Article 31, Paragraph 1 of the Disaster Prevention and Protection Act).

(2) Leave-taking due to COVID-19 infections

1. Infections as a result of work

If an employee is infected as a result of work (e.g., physicians and nurses infected when caring for patients), regardless of whether this is attributable to the employer, since this is an occupational accident under the Labor Standards Act, the employer shall grant a duty-related injury and disease leave during the employee’s recovery period along with a compensation based on the original wages payable to the employee (Article 6 of the Regulations of Leave-taking of Workers and Article 59, Subparagraph 2 of the Labor Standards Act).

2. Infections not as a result of work

If an employee is infected not as a result of work, the employer shall pay corresponding wages based on the type of leave taken by the employee for the recovery period (Article 4 of the Regulations of Leave-taking of Workers).

[1] The author is a lawyer at Lee, Tsai & Partners.  However, the contents of this article merely reflect personal opinions and does not represent the position of this law firm.

[2] Currently, the tracking and administrative mechanisms set up by the Taiwan government for people facing infection risks include mechanisms such as home isolation, home quarantine, centralized isolation, and self-health management.  For details, please refer to a chart (version current of March 4, 2019) prepared by the Central Epidemic Command Center: https://www-ws.gov.taipei/Download.ashx?u=LzAwMS9VcGxvYWQvNjg0L3JlbGZpbGUvNTE4NDUvODE1NzIxMS8wMTZkNDk0MC1kOGU4LTQ3N2YtYWQ4OS1iM2ViY2NmYzEzMjcucGRm&n=5YW35oSf5p%2bT6aKo6Zqq5rCR55y%2b6L%2b96Lmk566h55CG5qmf5Yi2MTA5MDMwNC5wZGY%3d&icon=..pdf

[3] https://www.mol.gov.tw/3016/44241/

[4] Including school children below 12, children studying in senior high school (including senior high schools, senior vocational schools, and the first year through the third year of five-year college) or junior high school children whose parents hold disability manuals and school children in private and some public kindergartens.

[5] Including parents, foster parents, guardians or other people who actually take care of children in daily lives (such as grandfathers or grandmothers).