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1、 Medical period

The medical treatment period refers to the time limit given by the law for a worker to stop working and have a rest due to illness or non work related injury. Within this time limit, the employer shall pay sick pay and shall not terminate the labor contract with the worker. The medical treatment period is different from the "pay period for work stoppage". The pay period for work stoppage refers to that the worker needs to stop working to receive work-related injury medical treatment due to work injury or occupational disease. During the pay period for work stoppage, the original salary will not change. The duration of the medical treatment period depends on the actual working years of the laborer, the working years in the unit and the type of illness; Generally, the period of shutdown and salary retention period shall not exceed 12 months, and the specific period shall be determined according to the diagnosis opinions on injury conditions issued by the designated medical institutions.

The duration of the medical period is shown in the following table:

Note: (1) the medical treatment period shall be calculated from the first day of sick leave and accumulated; (2) During sick leave, public holidays, holidays and statutory holidays are included; (3) If a worker suffering from some special diseases (such as cancer, psychosis, paralysis, etc.) cannot recover within 24 months, the medical treatment period may be appropriately extended with the approval of the employing unit and the competent labor department.

2、 Guidelines for handling non work related diseases and labor relations of workers

The labor contract law stipulates that if a worker is ill or injured not due to work, he or she shall have the right to medical treatment and sick pay. Its purpose is to protect the legitimate rights and interests of the worker. During the medical treatment period, the employer shall not terminate the labor contract. If the employer terminates the labor contract in violation of the law, the worker may claim to continue to perform the contract, or require the employer to pay twice the economic compensation (i.e. economic compensation). On the contrary, if a worker pretends to be ill in an attempt to obtain sick pay without providing labor to the employer, the employer's employment management right and legitimate rights and interests will be infringed.

The laborer shall provide necessary diagnostic records and medical advice to prove the fact that he needs to rest due to illness

Under normal circumstances, the application for sick leave needs to be approved by the employer, and the worker's performance of the necessary formalities required by the employer is the prerequisite for the employer to approve sick leave. If the medical treatment materials submitted by the laborer cannot meet the requirements of the employer, but as long as the medical treatment materials can reflect that the laborer is ill and has the doctor's advice to rest, the employer shall approve the laborer's application for sick leave. On the contrary, a worker fabricates medical materials and takes leave without the consent of the employer, which constitutes absenteeism.

(picture from the network)

In the civil judgment (2021) Jing 03 min Zhong No. 106, Dako held that Xie failed to provide complete sick leave certificates as required by the company and was absent from work for 16 days, which was a serious violation of rules and regulations. Dako has the right to terminate the labor relationship with Xie accordingly. The Beijing No. 3 intermediate people's court held that the diagnosis certificate submitted by Xie could reflect his depression and the doctor's advice to take a rest. Even if the medical treatment materials submitted by Xie were not as complete as those required by the appellant, the fact that Xie needed to take a rest due to illness could not be overturned. Finally, the court found that Dako had illegally terminated the labor relationship.

During the medical treatment period, the employer shall not terminate the labor contract

As mentioned above, the employer shall not terminate the labor contract during the medical treatment period. According to the provisions of Article 6 of the provisions on medical treatment period for enterprise employees suffering from illness or non work related injury, if a worker is not disabled due to work and is identified by a doctor or medical institution as suffering from a disease that is difficult to treat, and the medical treatment ends within the medical treatment period, and he is unable to engage in the original work or the work otherwise arranged by the employer, he shall be subject to labor capacity appraisal. Those who are identified as grade I to grade IV shall quit their jobs, terminate their labor relations, go through the formalities for retirement and resignation, and enjoy the benefits of retirement and resignation; If the employee is identified as grade 5 to 10, the labor contract shall not be terminated during the medical treatment period.

If a worker fails to return to his post after the expiration of the medical treatment period, the labor and capital may negotiate to extend the medical treatment period. If the employer terminates the labor contract, it shall follow the legal procedures

According to the first paragraph of Article 40 of the labor contract law, if a worker is ill or injured not due to work, and is unable to engage in the original work or the work otherwise arranged by the employer after the prescribed medical treatment period expires, the employer may terminate the labor contract after notifying the worker in writing 30 days in advance or paying the worker an additional month's salary.

According to the above provisions, if a worker requests to continue taking sick leave after the expiration of the medical treatment period, and can provide the diagnostic materials issued by the medical structure, the employer and the worker can negotiate to extend the medical treatment period. If the laborer fails to provide labor after the expiration of the medical treatment period, the employer shall not directly terminate the labor contract of both parties for reasons such as absenteeism. The employer may terminate the labor contract only if the laborer cannot engage in the work otherwise arranged by the employer.

For example, in the civil judgment (2020) Jing 02 min Zhong No. 6977, the second intermediate people's Court of Beijing held that after Jia's medical treatment expired, Chang'an company directly terminated the labor contract with Jia on the grounds of absenteeism without verifying with Jia whether his physical condition could be engaged in the original work, negotiating with Jia on job adjustment, or urging Jia to go to work, If the handling method is improper, Jia should be paid compensation for illegal termination of labor relations.

In addition, according to the provisions of Article 7 of the provisions on medical treatment period for enterprise employees suffering from illness or non work related injury, a worker who is not disabled due to work and who is recognized by a doctor or medical institution as suffering from a disease that is difficult to treat shall be evaluated for labor ability upon expiration of the medical treatment period. Those who have been identified as grade I to grade IV shall quit their posts, terminate their labor relations, go through the formalities for retirement and resignation, and enjoy the benefits of retirement and resignation. Therefore, when a worker is not disabled due to work or suffers from a disease that is difficult to treat, the employer shall require the worker to conduct an appraisal of his / her labor ability. If a worker refuses to provide labor at the expiration of the medical treatment period on the grounds that he has not recovered from illness, is unable to engage in the work otherwise arranged by the employer, and refuses to assess his ability to work, the employer may terminate the labor contract.

For example, in the civil judgment (2021) Jing 03 min Zhong No. 16864, the third intermediate people's Court of Beijing held that jieliyang company gave Gao a 9-month medical treatment period according to law, and after the medical treatment period expired, he served Gao with two notices of returning to work, a notice of arranging another job, a letter of urging for labor ability level appraisal, etc., but Gao has always asked jieliyang company to give him another 3-month medical treatment period, In addition, he did not submit the diagnosis certificate or medical advice specifying the rest period, and did not return to his post as required until november11,2020. Therefore, the court of first instance held that it was not improper for jieliyang company to terminate the labor relationship illegally, and the court did not support Gao's claim for economic compensation.