2020.03.11 ZHU, He (George)、Carey Ni、XI, Xi
Since the outbreak of Novel Coronavirus Pneumonia (“NCP”), China’s provinces, autonomous regions and province-level municipalities have successively launched public health emergency plans in their respective administrative regions and taken actions to contain NCP. Local governments in regions such as Zhejiang, Gansu, Anhui and Shanghai have set out requirements that enterprises should prepare emergency plans for the prevention and control of NCP (“NCP emergency plans”) in the form of notices on the prevention and control of NCP and the resumption of work. Some notices have emphasized that the responsible person in the enterprise should lead the preparation work personally. In view of the importance of stopping the spread of NCP, it is likely that more local governments may issue similar documents or requirements.
According to some local governments’ notices on the resumption of work and the prevention and control of NCP, an enterprise should comply with the relevant requirements stipulated in such notices, including the requirement to draft an NCP emergency plan. Although such governmental notices do not specify the punishments for an enterprise that fails to have an NCP emergency plan in place, we cannot exclude the possibility that the enterprise in violation may be subject to administrative punishment, based on our understandings of the relevant laws and regulations.
More importantly, in the case of an absence of a detailed NCP emergency plan, enterprises may find that they have issues in the managing of the implementation of prevention and control measures against the spread of NCP. As a result of such issues, an enterprise may face legal risks in areas such as environment, occupational health, labor, and civil affairs, and under serious circumstances, an enterprise may also be ordered to suspend production and operations; its license or business certificate may be temporarily suspended or revoked, and the enterprise may even be subject to criminal liability. This will adversely impact on the enterprise’s normal operations as well as its relationship with its suppliers and clients. Given the importance of the NCP emergency plan and the potential risks of not having one, it would be very important for enterprises to have an NCP emergency plan in place.
There are various factors to consider in drafting an NCP emergency plan, namely, (i) regulatory requirements may differ depending on different regions (for instance, we have noticed that some local governments have publicized templates of the NCP emergency plans specifically for enterprises’ use, while other local governments have not), (ii) regulatory requirements may vary among different industries, and (iii) business features and characteristics may differ among enterprises. Despite the above, we have summarized some common key points and outlined here the structure of a recommended NCP emergency plan for your reference (especially for enterprises in regions that do not have existing templates for NCP emergency plans).
We recommend that an enterprise intending to prepare an NCP emergency plan identify the basis of formulating such a plan first, and then make reference to our suggestions concerning the plan’s structure under Part III below, and then draft a plan according to its actual needs and unique situation. An enterprise also needs to take into account how to align its NCP emergency plan with its existing emergency plan, as well as with its affiliates’, the governments’ or governmental departments’ existing emergency plans. Specifically speaking:
1、Identify the basis for formulating the NCP emergency plan. Enterprises should pay attention to the national laws and regulations (e.g., Infectious Diseases Prevention Law, Regulations on Public Health Emergencies) as well as to the local implementation regulations and measures, national and local normative documents (e.g., the recent notices publicized by the State Council Joint Task Force of NCP Prevention and Control, the notices released by the ministries and commissions of the State Council towards specific industries under their supervision, and the notices on combating NCP and resuming operations released by local governments), the guidelines on prevention and control of NCP released by the Chinese Center for Disease Control and Prevention as well as its local counterparts, and the relevant guidelines released by professional associations and research institutes.
2、Align with relevant governmental emergency plans. Enterprises may consider aligning their own NCP emergency plan with the public health emergency plans and the specific NCP emergency plans prepared by different levels of governments and specify in its NCP emergency plan the relevant measures to be undertaken against the spread of NCP that are applicable to the enterprise.
3、Align with the enterprise’s affiliates’ emergency plans. An enterprise group’s headquarters should formulate an NCP emergency plan and give instructions to its subsidiaries and branches in this aspect. A subsidiary and branch may draft its own emergency plan by making proper supplements or adjustment to the headquarters’ plan by reference to the formulating basis applicable to its industry and the geographical region to which the subsidiary or branch belongs (please see our discussion under Point 1 of Part II).
4、Review the existing emergency plans. Some special types of enterprises are obliged to formulate their own emergency plans (in Chinese 突发事件应急预案)，and some industry-specific entities (e.g., hospitals, schools) are obliged to formulate their own public health emergency plans (in Chinese 突发公共卫生事件应急预案). The aforesaid entities should review their existing emergency plans or public health emergency plans, and may consider re-formulating a specific NCP emergency plan, or making adjustments to the existing plans by taking into consideration the points we discussed above.
Based on our observation of the key areas of importance for an enterprises’ internal and external management, and by reference to (i) national laws and regulations related to emergencies or public health emergencies, (ii) certain public health emergency plans at the national or local level, and (iii) some local governments’ requirements of enterprises’ formulation of the emergency plans, among others, we summarize below a recommended NCP emergency plan’s structure (please note that if the local government has already issued a template of an NPC emergency plan for enterprises’ use, we recommend using such template as a basis and then make necessary supplements where needed):
Despite the discussion above regarding how an enterprise should prepare an NCP emergency plan, such a plan needs to be formulated on a case-by-case basis and take in to account various factors such as the national and local rules in that region, the features and compliance requirements of the industry to which the enterprise belongs, and the specific needs of the enterprise. Despite the epidemic, JunHe is always ready to provide support. Please feel free to contact us at email@example.com if you have any questions or need our assistance.
JunHe EHS Team: JunHe, with over 800 professionals, is one of China’s sizable comprehensive law firms with an international reputation for providing high-quality legal services. As one of the pioneers in the legal areas of the environment and health and safety production (“EHS”) in China, JunHe EHS team provides multinational enterprises with a full range of EHS legal services that cover, among others, the project development and incorporation of joint ventures, M&A transactions, daily operation, EHS compliance, government investigations, administrative punishments, reconsiderations and litigations.