The Wuhan Pneumonia (“COVID-19” per W.H.O) has overtaken the world, and there have not been clear signs of pandemic-slow-down. In order to strengthen disease prevention, the Central Epidemic Command Center (“CECC”), all levels of government agencies, and private companies have been very cautious and implemented “advanced pandemic prevention” measures. Among which, in an effort to prevent the risk of spread from crowd gathering, whether or not to “cancel the Labor Day long weekend” has become a topic for discussion. However, whether and how to “cancel” the Labor Day holiday, a “statutory holiday,” is not without any room for discussion.

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Holiday and the Adjustment Thereof

Paragraph 1 of Article 37 of the Labor Standards Act (hereinafter the “LSA”) provides, “Leaves shall be granted for national holidays, holidays, and Labor Day which are designated as holidays by the Ministry of the Interior and holidays designated by other Central Competent Authority.” Based on such provision, workers shall be granted leaves on “holidays” such as Labor Day and Dragon Boat Festival Day, and the employer shall pay the salary for those days.

However, based on the current provisions of the Labor Standards Act, it is not strictly prohibited to have workers to work on “holidays.” Pursuant to Article 39 of the LSA, if an employer has obtained the consent of a worker to work on a holiday, the employer may have the worker work on such a holiday but shall pay the worker at double of the regular rate for such work. In addition, pursuant to Paragraph 1 of Article 40 of the LSA, an employer may require workers to suspend all leaves of absence if an act of God, an accident or unexpected event requires continuance of work; provided, however, that the worker concerned shall receive wages at double the regular rate for work during the suspended leave, and then also be granted leave to make up for the suspended leave of absence. Moreover, in practice, the employer and worker may also “move” the holiday to another day, after negotiation, so that the worker will not have the number of holidays reduced and the employer can satisfy its needs to have the worker to work on such a holiday.

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More Discussion Is Needed Regarding the Legal Basis of Holiday Cancellation

As one can see, the LSA provides that holidays may be “adjusted,” with the focus of such provision being placed on “the worker’s consent resulted from a negotiation between the employer and the worker.” In the event of force majeure or emergencies, the employer must first determine whether there is a necessity for the worker to work before the worker is being asked to work. Hence, there is simply no basis for the government agency to announce the “cancellation of a holiday.”

Some may think that if it is indeed necessary for a holiday to be cancelled, the health authority may apply Article 7 of the Special Act for Prevention, Relief and Revitalization Measures for Severe Pneumonia with Novel Pathogens as a basis. However, such provision only provides a general guideline that, “The Commander of the Central Epidemic Command Center may, for disease prevention and control requirements, implement necessary response actions or measures.” It is not without question whether such a general guideline may bear the hefty responsibility of cancelling a holiday for all workers of the entire nation.

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Moreover, what are the subsequent effects of cancelling a holiday? More discussions are needed on this topic. As aforementioned, besides the circumstance of “moving a holiday” after the employer-employee negotiation, if an employer obtained worker’s consent, or due to act of God or emergencies, and requests the worker to work during a holiday, the employer shall pay the worker at double the regular rate. If a holiday is cancelled by the government, then the holiday is obviously not moved by an employer-employee negotiation. Under such circumstances, whether the employer is required to pay double the regular rate is questionable. Since the employer does not have the need to have the worker work on a holiday, how is it necessary for employer to be obliged to pay double the regular rate? However, if the worker does not have this kind of wage recoup, it is also not fair to the worker. After a holiday is “cancelled,” should a make-up day be granted? Questions like these in practice will be required to be regulated by more specific provisions to avoid employer-employee disputes during the implementation.    

Therefore, although disease prevention is the number one priority during a pandemic, the rights and obligations of the employer and the employee should also be clarified in order to avoid over-sacrificing labor rights in the name of disease prevention. This is an area worthy of further discourse for our government.

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(This article was published in the “Expert's Commentary” column of the Commercial Times.   https://view.ctee.com.tw/social/19337.html  For more information related to the content of this article, please do not hesitate to contact Formosan Brothers Attorneys-at-Law.)

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