Remote Working Legislation, Laws & Regulations in China

Currently there is no specific legislation relating to working from home in China. However, general labour laws  and regulations (e.g. on working hours, labour conditions and work safety) should also apply when working from home.

Working from home can be implemented through the company rules and regulations, collective bargaining agreements, written contracts or mutual agreement.

Requiring an employee to work from home or to return to the office usually constitutes a change of workplace. Generally, an employer has no right to require employees to work from home or to return to the office unless the employees agree. Employee consent is therefore necessary, except where the employer’s rules and regulations or a collective bargaining agreement provide otherwise.

No. An employer is not obliged to agree to an employee’s request to work remotely. The employer’s consent is also necessary.

Yes. The employer is generally obliged to provide employees with the required working equipment and supplies regardless of the place of work. Therefore, if an employee asks for office equipment and supplies for remote working, the employer is obliged to provide them.

Yes. The employer is obliged to reimburse an employee for expenses incurred while working from home if such expenses were necessary for working from home and the employee can prove that they were incurred for that purpose, such as expenses for document printing or business phone calls. In practice, it is uncommon to reimburse electricity or internet expenses.

No. There is no statutory provision that obliges the employer to grant the employee a specific work-from-home allowance.

Yes. Under the PRC labour law, an employer must provide employees with a safe and healthy working environment and conditions in accordance with law. This includes employees who work remotely. In practice, it is difficult for an employer to implement this obligation for employees working remotely. To reduce risks, the employer should agree with any employee who wishes to work from home that they will undertake and ensure that their residence environment is safe, healthy and suitable for the purpose.

No.

There is no statutory requirement.

According to the PRC Work-Related Injury Insurance Regulation, if an employee suffers a work-related injury or occupational illness, the employee is entitled to receive the statutory work-related injury insurance benefits.

Whether an injury or illness suffered while working from home constitutes a work-related injury or an occupational illness is subject to the decision of the competent labour authority in accordance with the law.

No.

The employee has no specific statutory obligations related to working from home. However, the employer may set up specific obligations for an employee related to working from home through an individual agreement or company rules, such as requiring the employee to take proper measures to ensure the safety and security of any company data processed while working remotely, etc.

No.

‘Remote work abroad’ is not specifically defined in the laws of the People’s Republic of China (PRC). In general, it refers to a scenario in which an employee performs work for the employer outside the employer’s premises from another country while remaining connected through technical means.

Currently, there is no national regulation in China that specifically relates to remote work abroad.

Under PRC law, the applicable labour law for an employment relationship is mandatory and cannot be chosen by the employer or the employee. Generally, where foreign-related factors are involved, an employment contract is governed by the law of the place of work of the employee. If it is difficult to determine the place of work, the law of the principal place of business of the employer applies. The Supreme People’s Court of the PRC further requires that PRC law applies to the protection of the rights and interests of employees.

Based on the above, the applicable labour law may vary depending on different scenarios of remote work abroad:

• If a foreign employee works abroad remotely for a Chinese employer at a regular workplace abroad, the law of the regular place of work abroad will apply.
• If a Chinese employee works abroad remotely for a Chinese employer at a regular workplace abroad, PRC law will apply to matters relating to the protection of the rights and interests of the employee.
• If an employee (whether a Chinese national or a foreign national) works abroad remotely for a Chinese employer but does not have a regular workplace abroad, the place of work is difficult to determine. In such a situation, PRC law will apply.
• If an employee (whether a Chinese national or a foreign national) works remotely in China for a foreign company which does not have a business registration in China and does not conduct business operations in China, the foreign company is not qualified to act as an employer engaging the employee in China. In such a scenario, the working relationship between the foreign company and the employee will not be regarded as an employment relationship, and the application of the law will be subject to the agreement of the parties. If no agreement is reached, the law of the habitual residence of the party whose performance of contractual obligations most closely reflects the characteristics of the contract, or the law most closely associated with the contract, shall apply.

Under PRC law, all Chinese employees employed by Chinese employers are required to participate in China’s social security system at the place where the Chinese employer is registered, regardless of where the employees perform work, whether at home or abroad.

Foreign employees working for Chinese employers in China are also required to participate in China’s social security system. Foreign employees who are nationals of Canada, Finland, Germany, South Korea, Japan, Denmark, Spain, the Netherlands, Luxembourg, France, the Republic of Serbia, Switzerland and the Kyrgyz Republic, which have concluded bilateral or multilateral agreements with the PRC, may be exempt from parts of China’s social security system under certain conditions.

However, if a foreign employee permanently works abroad for a Chinese employer rather than in China, they will not be required to participate in China’s social security system.

If employees (whether Chinese nationals or foreign nationals) work remotely in China for foreign companies abroad, such working relationships will not be regarded as employment relationships under PRC law, and the foreign companies cannot make social security contributions for their employees in China.

A foreign employee working remotely in China for a short term solely for a foreign employer does not need to pay PRC Individual Income Tax (IIT) unless his/her activities constitute a permanent establishment in China.

A foreign employee working remotely outside China for a short term solely for a Chinese employer must pay PRC IIT for the entire salary income, but any personal income tax levied by the foreign jurisdiction due to the short-term remote working can be subject to foreign tax credits in China if the foreign employee is a PRC tax resident individual.

A foreign employee taking dual positions in both a foreign entity and a Chinese entity, regardless of working remotely for a short term in China or abroad, must pay IIT for the PRC-sourced incomes corresponding to the time spent in China.

A Chinese employee working remotely abroad for a short term for a Chinese employer will always pay IIT for full incomes without apportionment, but any personal income tax levied on the salary incomes by the foreign jurisdiction can be subject to foreign tax credit in China.

Under PRC law, foreigners working in China for Chinese employers are required to obtain work permits and residence permits to legally work and reside in China. However, if the foreign employee permanently works abroad rather than in China for the Chinese employer, PRC laws do not require this foreign employee to obtain a work permit or a residence permit.

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