Measures implemented by the Macau Government during COVID-19 outbreak
Since the beginning of the outbreak of the Covid-19 epidemic in the Macau Special Administrative Region on 19 June 2022, the Macau SAR Government has issued a series of epidemic prevention measures in accordance with Law no. 2/2004 Law on the Prevention, Control and Treatment of Infectious Diseases.
CFB Lawyers has prepared a summary outlining the impact on employment relations under the current measures.
Orders of the Chief Executive and Guidelines issued by Macau entities
Effective from 23 June 2022
- Closure of all public services;
- Closure of all restaurants, beverage establishments and catering establishments providing dine-in services to the public – take-away services still available;
- Closure of specific venues – such as cinemas, theatres, indoor playgrounds, game centres, internet bars, snooker rooms, bowling centres, etc.
Effective from 11 July 2022
- Mandatory stay at home order. People can leave their home only to attend to basic needs, such as shopping, medical assistance or to go to the pharmacy;
- Adults are required to wear a mask with KN95 or with a higher standard when outside their residence;
- Suspension of business of all industrial and commercial venues, except for any companies or businesses which are essential to maintain the necessary operation of the community and the daily lives of the citizens in Macau;
- Those entities which will maintain their operations should impose limitations of persons in certain places and require all attendants to scan the venue code;
- People required to work must obtain a special permit, which is issued by the relevant authorities.
Violations of the measures will have criminal liability with penalty of imprisonment up to (2) two years or with a fine of up to 240 days in accordance with Law no. 2/2004 Law on the Prevention, Control and Treatment of Infectious Diseases.
Under the current circumstances, there are companies or business entities performing different work arrangements. Based on the labour relations law and the different guidelines issued by government entities, please refer to the below frequent enquiries:
Q&A – Labour relations during the pandemic
- In face of the epidemic, if the company / business enterprise is unable to arrange work for its employees due to various reasons (government recommendations, closure of premises due to epidemic prevention needs, etc.), do they have to pay salary to their employees (local and non-resident) as usual?
Below are 3 (three) scenarios that may occur at the present moment:
|Businesses entities responding to government recommendations decide to close or employers decide unilaterally to not operate||Employers are obliged to pay salaries|
|The closure of the premises was required by the Government for epidemic prevention purposes, resulting in the suspension of business operations.||Force majeure / employer has no obligation to pay salaries|
|The premise is open as usual, however, employees are unable to work due to their own reasons||Employers have no obligation to pay wages|
Notwithstanding the above, employers are at liberty to agree on more favourable conditions with the employees.
- What should be done if an employee is unable to work due to the following reasons under the Government’s epidemic prevention guidelines?
|Failure to report to work due to non-compliance with guidelines of doing Covid-19 nucleic acid tests||To be considered as unjustified absence of work due to the employee’s own reason on non-compliance with the guidelines / depending on the repetition and severity (more than three consecutive days or five intermittent days per year), dismissal may be justifiable under the Labour Relations Law|
|When an employee is required to be medically isolated, or when the health code has turned Yellow or Red||Justified absence of work / employee should inform employer as soon as possible / Employer has no obligation to pay salaries|
|Employees (local and non-resident) who are mandatorily quarantined due to confirmed Covid-19 or are considered close contacts||Will not be considered as sick leave under the Macau Labour Relations Law|
|Employers who place employees in areas where there is a risk of infection (e.g. working in isolated hotels), resulting in employees being unable to provide work due to epidemic prevention measures (e.g. health code yellow, red or isolation)||Work to be performed under instruction of the employer / Employer is obliged to pay salaries|
|Employees (local and non-resident) who have visited certain areas on their own accord and are unable to work because their health code is yellow, red or subject to preventive measures such as immigration restrictions||Caused by the employee / Employer has no obligation to pay salaries|
|The segregation measures implemented by the SAR Government (non-resident employees who leave Macau for the Mainland are required to be isolated at a designated place when they return to Macau).||Caused by the employee / Employer has no obligation to pay salaries|
Notwithstanding the above, employers are at liberty to agree on more favourable conditions with the employees.
When a company/business entities/employer is considering adopting the options below, it is important to note that:
The use of weekly or annual leave, by mutual agreement. If unilaterally implemented, 3 days in advance is recommended;
- Unpaid leave – must be agreed between the employer and employee
Salary reduction – reduction in basic remuneration must be mutually agreed in writing and informed to the Labour Affairs Bureau of Macau in order to be effective;
- Termination of contract – the employer must comply with the advance notice period (the period of quarantine may be counted as advance notice) and pay the corresponding termination compensation;
- The employer is prohibited from unilaterally reducing the hours of work and the number of employees working. Unilateral changes may have the consequence of the employer remaining obliged to pay the full salary of the employee.
For non-resident employees
- Due to the epidemic prevention measures, foreign employees originally received accommodation allowance and resided outside Macau. Now they choose to stay in Macau, who will pay for the expenses?
The Law for the Employment of Non-resident Workers stipulates that the non-resident employee’s right to lodging may be guaranteed by the employer, or by the employment agency which hired the respective worker and may be settled in cash.
If the employer has paid the non-resident employee in cash to fulfil the obligation of accommodation guarantee but the non-resident employee chooses to stay in Macau, the non-resident employee shall be responsible for the relevant expenses. However, if a better agreement has been reached between both parties, the relevant agreement shall be upheld.
- What is the legal procedure if a company and its employees agree to a pay cut?
Under the Labour Relations Law, to reduce the employee’s basic remuneration, there must be a mutual agreement in writing between both parties, and the agreement will only take effect after the Labour Affairs Bureau is notified within ten days of its conclusion.
If the non-resident worker’s basic remuneration, after reduction, is lower than the amount granted by the employment permit, in addition to complying with the requirements mentioned above, an application must be submitted to the Labour Affairs Bureau in advance, and the agreement will take effect only after the application is granted.
- What can employers do if they are unable to recruit suitable non-resident employees within six months after obtaining permission to employ due to the outbreak?
Pursuant to the Law for the Employment of Non-resident Workers, in the event that the employment permit granted to the employing entity has not been utilized in the following six months, it will result in the expiry of the same. According to the Labour Affairs Bureau recent pandemic related recommendations, after the expiry of the employment permit, if the employer still needs to hire a non-resident employee, he/she may resubmit the application for importation of non-resident employees to the Labour Affairs Bureau and corresponding explanation can be given when submitting the application. The Labour Affairs Bureau will proceed with a case-by-case analysis taking into consideration the particulars of the case and handle it accordingly.
However, in our opinion, prior to the expiry of the relevant employment permit(s), employers should file a petition with the Labour Affairs Bureau expressing the needs for such permit(s) and requesting an extension of the deadline to use the employment permit due to pandemic related constraints.
- Being affected by the epidemic, the non-resident employee has been out of the region for over three months. Will the employee’s work permit (blue card) be cancelled?
Under the Law for the Employment of Non-resident Workers, in the event that the non-resident employee hired has not been in Macau for over three consecutive months, it will result in the expiry of the work permit; the employer or the employee may contact the Public Security Police Force for more information.
According to the Labour Affairs Bureau, after the expiry of the work permit, if the employer still needs to hire a non-resident employee, he/she may resubmit the application for importation of non-resident employees to the Labour Affairs Bureau and corresponding explanation can be given when submitting the application. The Labour Affairs Bureau will proceed with a case-by-case analysis taking into consideration the particulars of the case and handle it accordingly.
However, in our opinion, employers should consider the alternative option of submitting an explanation letter to the Macau Immigration Services justifying the absence of the employee from Macau due to the entry restrictions or other reasons, as well as the need to continue working in Macau, and, consequently, request that the validity of the work permit is maintained.
Treatment of employees after confirmation of diagnosis and precautions
- Is it considered as an accident at work / occupational disease if an employee is infected with Covid-19 in the course of his work?
According to Decree-Law No. 40/95/M (the Legal Regime on Compensation for Damage Arising from Work Accidents and Occupational Diseases) and the recent guideline published by the Macau Insurance Association on 30 June 2022, the general principle is that a work-related accident is a damage that occurred during working hours and in the workplace. Due to the widespread transmission of Covid-19 and the latent period between infection and diagnosis, it is necessary to conduct epidemiological investigation before a conclusion can be made as to whether an employee has been infected with Covid-19 as a result of his work. Therefore, employers should notify the Labour Affair Bureau in accordance with the Legal Regime on Compensation for Damage Arising from Work Accidents and Occupational Diseases and the employees concerned can also report to the Labour Affairs Bureau for follow-up and investigation in accordance with the law.
Feel free to contact us for more information