Current national guidance or requirements regarding returning to work
There is no national guidance or requirements regarding returning to work because the Korean government has not ordered a general shut-down of businesses due to COVID-19. However, the Central Disaster and Safety Countermeasures Headquarters, the agency coordinating the government’s policies to address the pandemic (the “CDSCHQ”), issued the “Social Distancing Guidelines” which provide recommendations for businesses to follow.
As for the timing of returning to work and lifting of quarantine on each employee, please refer to the below information from the Guideline on Prevention of Coronavirus (May 11, 2020 – 8th edition) published by the Ministry of Employment and Labor (the “MOEL”).
COVID-19 confirmed employee: 7 days after the onset of COVID-19, quarantine may be lifted and individuals may return to work if he/she tests negative twice in a row within 24 hours. However, even if quarantine gets lifted this way, employees are still recommended to self-quarantine for 14 days.
Employees who have come in contact with a COVID-19 confirmed individual:
- Employees showing symptoms such as fever, cough, etc. must get tested. Even if the employee tests negative, he/she must be quarantined for 14 days after contact with the confirmed individual.
- Employees showing no symptoms are not required to get tested but must be quarantined for 14 days from the initial contact before returning to work.
- Employees showing no symptoms but living together with a medical professional/student or a confirmed individual must test negative 13 days after his/her last contact with the cohabitant before they can return to work.
Individuals returning from overseas may return to work after a 14- day quarantine period.
As a general note, businesses are advised to have their employees wear masks in the workplace (i) in enclosed spaces such as elevators or indoor multi-use facilities, or (ii) when conducting in-person workshops, trainings, and like activities (https://www.gov.kr/portal/ntnadmNews/2148740?hideurl=N
Logistical limits regarding social distancing and size of meetings
Employers are recommended to have their employees keep a safe distance from each other, by keeping two meters or more but a minimum of one meter apart, by adjusting workplace monitors, desks, etc.
If a conference is necessary, companies are encouraged to hold a video/phone conference rather than in-person meetings. If an in-person conference is required, it should be held at a large conference room that can be ventilated.
Further, conference attendees should keep a safe distance from each other, by keeping two meters or more but a minimum of one meter apart, and the conference room should be ventilated every hour. If these recommendations cannot be followed, all attendees should wear masks during the conference (CDSCHQ Social Distancing Guideline (May 3, 2020)).
Testing requirements (e.g. taking people’s temperatures) or recommendations including employee monitoring
Employers should check the temperature and respiratory conditions of their employees everyday by using non-contact thermometers or thermal imaging cameras. (CDSCHQ Social Distancing Guideline (May 3, 2020))
Cleaning recommendations or requirements
Employees should keep their hands clean with hand sanitizers or soap and water. Further, employees should periodically disinfect their personal belongings at work (e.g., their computer keyboards) and ventilate their work space (CDSCHQ Social Distancing Guideline (May 3, 2020)).
- Employers should make hand sanitizers/soaps available at the workplace and post notices relating to personal hygiene, such as the need to hand wash, and tips on how to cough in public.
- Employers should keep the windows open at all times if natural ventilation is possible. If this is difficult, employers should use air conditioners or other similar methods to ventilate the work place at least twice a day. In addition, employers should disinfect common areas/objects at least once a day.
- Employers should provide disinfecting materials for employees (CDSCHQ Social Distancing Guideline (May 3, 2020)).
Compensation or remuneration issues
Support Subsidy for Paid Leave
The Korean government will provide a support subsidy for paid leave to an employer that provides required paid leave to an employee who is hospitalized/isolated by the health authorities due to COVID-19. The amount of this subsidy is a maximum of KRW 130,000 per day.
Employment Maintenance Subsidy
The government will provide an “employment maintenance subsidy” to employers experiencing difficulties due to COVID-19 but who take measures such as suspending their business rather than laying off employees. In principle, this subsidy is available only to employers who meet certain requirements such as decreased sales/production of at least 15% from the same period in previous year (Article 24, Item 1 to 7 of the Employment Insurance Act). However, according to the MOEL, an employer need not meet these requirements to receive the employment maintenance subsidy if the employer is in the tourism, health services, or any other industries that the relevant authorities have recognized as having been adversely impacted by COVID-19.
Data collection and privacy
Epidemiological Investigation by the Health Authorities:
- Under Article 18 of the Infectious Disease Control and Prevention Act (the “IDCP Act”), health authorities must conduct an epidemiological investigation if there is a risk that the pandemic will spread. In order to conduct such investigation, health authorities may obtain such information as the personal information and medical records of patients, place of outbreak, and cause of outbreak (Article 12(1) of the IDCP Act). The recent whereabouts of infected individuals are normally identified through an interview with the individual. However, if needed, health authorities may check the individual’s GPS, credit card payments, and other items of information (Article 76-2(1) of the IDCP Act and Article 32(2) of the enforcement decree of the same Act). An individual may be punished by a fine of up to KRW 20 million or imprisonment of up to two years if he/she interferes with, avoids, or intentionally omits facts during an epidemiological investigation (Article 79, Item 1 of the IDCP Act).
- The Minister of the Ministry of Health and Welfare must disclose to the public certain information necessary to prevent the spread of the pandemic, such as the infected individual’s method of transportation and individuals who he/she have come in contact with (Article 34(2) of the IDCP Act).
Disclosure by Employers
The fact of an individual being infected with COVID-19 is considered to be personal information of that individual. Hence, the employer’s disclosure of such information may constitute a violation of Article 23 of the Personal Information Protection Act, unless (i) the infected employee provides his/her consent, or (ii) there are other legal grounds for the disclosure. However, the employer’s disclosure of such personal information to the health authorities is allowed if it is to cooperate with an epidemiological investigation.
Infectious Disease Act
As the 2019 novel coronavirus ("nCoV") outbreak continues unabated, affecting a growing number of countries including Korea, we wanted to share with you some considerations for companies doing business in Korea.
Obligation to Prevent Infections in Employees
Under the Labor Standards Act ("LSA") and the Infectious Disease Control and Prevention Act ("Infectious Disease Act"), which are the two general statutes that have applicability to infections in the workplace, there is no general liability for the employer in case of an employee becoming infected with nCoV. However, the employer is viewed as having an obligation, incidental to the employment relationship, to protect the safety of employees, which includes the obligation to take measures to protect employees from sources of danger within the workplace and to ensure that employees can work in a safe environment. In particular, the Occupational Safety and Health Act ("OSHA") requires employers to protect the health of employees by prohibiting or limiting from working any employee diagnosed with infectious diseases pursuant to a physician's diagnosis. If an employee becomes infected with nCoV in the workplace as a result of the company's failure to comply with the employer's obligation to protect employee safety and health, the company may be held liable (civil liability for monetary damages or even criminal liability in some cases).
In this connection, we recommend that companies refer to the "Guideline on Measures in the Workplace to Prevent the Spread of Novel Coronavirus" published by the Ministry of Employment and Labor ("MOEL") (updated to version 4 on February 11, 2020; referred to below as the "MOEL Guideline"). The MOEL Guideline prescribes in detail measures recommended to prevent nCoV infections in the workplace and measures to take in the event infection is detected. In the event of a dispute, the authorities and the courts are likely to look to the MOEL Guideline as a benchmark to determine whether the company has fulfilled its obligation to protect employee safety and health.
Responses to Finding a Suspected or Diagnosed Patient in the Workplace
Article 12(2) of the Infectious Disease Act requires anyone who finds a suspected patient (i.e. a person suspected of being infected with the pathogen of an infectious disease, but not yet confirmed as being infected) to notify the public health center that has jurisdiction over the site of discovery. Accordingly, if the company suspects infection in an employee but fails to report to the relevant public health center and other employees or customers are infected with nCoV as a result, the company may be held liable.
More specifically, the company is required to take the following measures:
- If a suspected patient is found in the place of business:
- According to the latest definition announced by the Korea Centers for Disease Control & Prevention ("KCDC"), a "suspected patient" means any of the following: (i) a person who experiences fever (37.5℃ or above) or respiratory conditions (coughing, sore throat) within 14 days of returning from China, (ii) a person who experiences the aforementioned symptoms within 14 days of coming into close contact with a diagnosed patient while the diagnosed patient was experiencing symptoms, or (iii) a person suspected of being infected with nCoV, pursuant to a physician's medical opinion (e.g. a person who experiences symptoms within 14 days of returning from a country with widespread nCoV infections or a person with pneumonia from unidentified causes).
- Check whether the suspected patient displays symptoms, require the suspected patient to wear a mask, and immediately notify the public health center with jurisdiction over the company's place of business (or contact the KCDC at 1339).
- Ensure that the suspected patient and any employees who have come into contact with the suspected patient wait for public health center workers to arrive in a quarantine location within the workplace while wearing protective gear (i.e. masks, disposable sanitary gloves) and not leave the workplace until the public health center's inspection is completed.
- After the suspected patient is transferred to the public health center, the quarantine location in which the suspected patient was placed should be disinfected using disinfectants such as rubbing alcohol or bleach by individuals wearing protective gear (i.e. masks, disposable sanitary gloves).
- Employees who have been issued quarantine orders by the health authorities or employees who have come into contact with suspected patients should first notify their supervisor over the phone without going to the office, then go to a hospital or place themselves in self-quarantine.
- If a confirmed patient is found in the place of business (including among any worker working at the same place of business or any customer who visited the place of business):
- Immediately notify the fact to all employees in the place of business (including dispatched or subcontracted workers).
- Cooperate fully with the KCDC's investigation and must also cooperate fully with measures prescribed by the public health center, such as disinfecting the locations visited by the confirmed patient.
- Comply with the public health center's instructions regarding active monitoring of any employees who were working in a location and time clearly separate from those in the path of movement of the confirmed patient.
- If an employee has recently visited the greater China region (including Hong Kong and Macao):
- Even if an employee has recently visited the greater China area, the employee is not a suspected patient nor a case that should be reported unless the employee experiences fever or respiratory symptoms (e.g. coughing, sore throat).
- However, the MOEL recommends workers who have recently visited China to refrain from contacting others or engaging in public activity for 14 days after returning from China, and to use vacation days, work from home, or temporarily close the business if possible in order to prevent the spread of infection (The Korean health authorities do not currently recommend individuals who have returned from countries other than China to work from home or use vacation days, but an employee who experiences fever or respiratory symptoms after returning from abroad should be advised to visit a medical institution or designated medical facility and disclose their travel history when receiving treatment).
- If the employee has already come in to work, send the employee home, and ensure the employee reports over the phone his/her physical condition and whether the employee is experiencing symptoms. During this process, the employee should be kept apart from other employees, and the employee's path of movement as well as persons the employee has come into contact with must be identified. • Designate an employee to handle nCoV related matters and have this responsible person confirm with the employee their physical condition and whether the employee is experiencing symptoms. If the employee is determined as a suspected patient or as a case that should be reported, the responsible person must report the employee to the KCDC's nCoV hotline (1339, 02-120) or the public health center with jurisdiction over the company's place of business.
- If an employee has recently visited Southeast Asia:
- The KCDC is advising, as of February 11, 2020, Koreans not to travel to Singapore, Japan, Thailand, Malaysia, Vietnam, or Taiwan, pursuant to an announcement by the World Health Organization.
- Even if an employee has recently visited Southeast Asia, the employee is not a suspected patient nor a case that should be reported, unless the employee is suspected by a doctor to have contracted nCoV due to experiencing fever or respiratory symptoms (e.g. coughing, sore throat) or pneumonia of an unknown cause.
- However, on February 7, 2020, the KCDC recommended that individuals who have recently returned from Southeast Asia refrain from unnecessary public activity for 2 weeks, monitor themselves for fever or respiratory symptoms, and receive treatment in designated medical facilities such as public health centers upon experiencing such symptoms.
- Recommend that employees not travel to the above countries, in addition to the greater China region, either for business or for personal reasons.
- If an employee has returned from any one of these countries in the past 14 days, recommend that the employee wear a mask, and ensure that the employee is treated at a designated medical facility such as a public health center as soon as they experience symptoms.
Obligation to Grant Paid Leave/Payment During Temporary Suspension from Work
Article 41-2 of the Infectious Disease Act requires businesses that receive subsidies from the government to grant paid leave to employees for the duration of their hospitalization or quarantine. The government plans to provide businesses that have granted paid leave to quarantined employees according to the Infectious Disease Act with subsidies, in the amount calculated on the basis of the daily wage per person (maximum KRW 130,000 per day). Businesses can apply for this subsidy through branches of the National Pension Service starting February 17, 2020. If the company receives a subsidy for paid leave from the government, the company is obligated to grant paid leave to the relevant employee.
Employers do not have a legal obligation to grant paid leaves to employees who are unable to work due to illness, unless the company's rules of employment or collective bargaining agreement (with the labor union) provides for such requirement. However, as mentioned above, the MOEL Guideline does recommend that companies grant paid sick leaves even in the absence of such requirement under other rules.
The MOEL Guideline states that a company must pay employees who are temporary suspended from coming to work if the suspension is based on the business owner's own discretion, but a company is not obligated to do so if suspension is unavoidable, such as due to the government's quarantine order. However, there is uncertainty regarding the former. As such, the company should review on a case-by-case basis taking into account the relevant circumstances.
We hope the above is helpful. New developments in the outbreak or changes in the government's guidance may necessitate other measures on the part of companies, so it is important to continue monitoring for related developments.
Government relief for companies impacted by COVID-19 in Korea
As in many other countries, there are various forms of financial support and relief available in Korea to companies impacted by COVID-19. We write to summarize the types of support and relief available.
There are generally three types of financial support available to companies impacted by COVID-19, as outlined below.
- Support Subsidy for Maintaining Employment: Under the Employment Insurance Act, the Ministry of Employment and Labor ("MOEL") provides support for companies meeting certain criteria if they reduce employee work hours or suspend their operations due to unavoidable circumstances such as sudden drops in revenue. The purpose of the support is to encourage companies to reduce work hours or suspend work rather than lay off workers as they may need to do otherwise. After the COVID-19 outbreak, the eligibility requirements have been gradually relaxed to make the subsidy available to more companies, regardless of industry.
As of March 25, 2020, a company is eligible for support if (i) it reduces work hours or its work force by 20% or more in one month or orders its employees to suspend their work for more than one month due to COVID-19, and (ii) pays its employees the necessary business suspension allowance or paid leave allowance.
These allowances must be paid to employees under the Labor Standard Act in case of business suspension for reasons attributable to the employer. The Act requires the employer to pay at least 70% of the employee's average wage as business suspension or paid leave allowance.
If granted, the support subsidy will be up to 3/4 (for small and medium enterprises ("SME") and certain other companies designated as requiring priority support) or 2/3 (for large companies) of the business suspension allowance or paid leave allowance, as applicable, that the company has paid to a given employee, which amount is capped at KRW 66,000 per day per employee. The support is available for the period February 1 to July 30, 2020, when the suspension allowance or paid leave allowance was paid. (In case of companies subject to priority support, the government further increased the ceiling to up to 90% for between April to June 2020.)
- Support Subsidy for Paid Leave: Under the Infectious Disease Control and Prevention Act, the Ministry of Health and Welfare ("MOHW") provides a support subsidy for paid leave to an employer that provides paid leave to an employee who is hospitalized or in isolation due to COVID-19. The amount of the daily subsidy, computed according to a formula based on the monthly salary, is capped at KRW 130,000 per day. However, this subsidy is not available if the affected employee has applied for and receives the living support expenses that the government has made available to employees under the same law who are hospitalized or in isolation due to COVID-19.
- General Subsidy for Corporations: The Ministry of Economy and Finance announced on March 24 that it would increase the emergency corporate subsidy fund from KRW 50 trillion to KRW 100 trillion, which will be utilized to provide guarantees or loans for corporations in need of financial support and to stabilize the bond market. The government will use this fund for various corporate relief measures, as part of the government's "public welfare and financial stabilization package."
The government has instructed various financial institutions to provide financial support for corporations in various sectors including tourism, air carrier, restaurant and shipping industries as well as other corporations which export/import products. The government will also expand its support for SMEs by providing government-funded loans and guarantees, while financial institutions will provide extensions of maturity and grace period on interest payments to corporations starting from April 1, 2020. The government will also purchase corporate bonds and support companies in issuing their P-CBO (primary collateralized bond obligation).
- Tax Relief for Taxpayers Impacted by COVID-19: Korea's National Tax Services announced on February 7, 2020, that it would provide national tax relief/support for taxpayers who suffered damages due to COVID-19. Such relief/support is available to corporate and individual taxpayers engaging in the tourism and hospitality sectors (food and lodging), transportation, concert/performances, medical services (hospitals/medical clinics), and wholesale and retail sales.
For example, the following taxpayers engaging in one of the business sectors above would be eligible for tax relief/support: an individual who is a confirmed patient or is subject to quarantine, a business with a confirmed case or a workplace where a confirmed case has visited, a business with a workplace located near facilities occupied by Korean returnees from Hubei Province, in China, and an SME transacting with China.
The national tax relief/support includes an extension on the deadline for filing tax returns, a similar extension on payment of corporate taxes, a postponement on issuing notices to pay delinquency fines and on collecting such fines, the prepayment of tax refunds, and suspension of tax audits.
In addition to this national tax relief, on February 5, 2020, the Ministry of Interior and Safety requested all municipal governments in Korea to implement local tax relief measures (similar to the above) for taxpayers who suffered damages due to COVID-19.
- Compensation of Damages Due to Government Measures: Any person or business that has been adversely affected by government measures implemented to prevent the spread of COVID-19 may file a claim for compensation with the MOHW or the municipal government. MOHW and the municipal government will compensate the loss in accordance with the decision by the Loss Compensation Review Committee. Examples of government measures include a mandatory order to close a workplace due to COVID-19 that results in the inability to use relevant facilities, equipment or personnel, and workplace disinfection in accordance with the Infectious Disease Control and Prevention Act. The MOHW is expected to provide more detailed guidelines on compensation criteria.
- Customs Support: The Customs Service will operate a 24-hour customs support system to expedite the import/export process for companies that experienced import/export delays due to COVID-19. The Customs Service will also (i) conduct minimum inspection and review of imported/exported goods to expedite customs clearance, (ii) allow extensions on payment of customs duties and payment of customs duties in installments, and (iii) suspend customs audits to support companies during the COVID-19 outbreak.