1. What is medical period ?
According to the second article of the notice issued by the Ministry of Labor on the "Regulations on Medical Treatment Periods for Enterprise Employees Sick or Injured Not Due to Work" (Ministry of Labor Fa [1994] No. 479), the medical period refers to the medical period for employees of enterprises due to illness or non-work-related injuries. The labor contract shall not be terminated within the time limit for stopping work for medical treatment and rest after injury.
The length of the medical period depends on the employee's cumulative working years and the company's continuous working years. Its essence is the dismissal protection period. During the medical period, the employer shall not terminate the labor contract. At the same time, the medical period does not depend on how long the employee’s treatment lasts. The length of the medical period has a legal basis and is not equivalent to the actual treatment period. Of course, it is not absolutely impossible to terminate dismissal protection during the period. Article 42 of the Labor Contract Law stipulates in Item (3) that "if someone is sick or injured not due to work and is within the prescribed medical period," the employer shall not The labor contract shall be terminated in accordance with the provisions of Articles 40 and 41 of this Law. In other words, if the employee has the circumstances specified in Article 39 of the Labor Contract Law, that is, if the employee has a major fault, the employer can terminate the labor contract.
2. The time limit and adjustment of the medical period
(1) The time limit of the general medical period
The Ministry of Labor issued the "Regulations on the Medical Period for Enterprise Employees Sick or Non-work-related Injuries" (Ministry of Labor Issue [1994] No. 479) (hereinafter) Article 3 of "Document No. 479" (referred to as "Document No. 479") stipulates that when an enterprise employee needs to stop work for medical treatment due to illness or non-work-related injury, he or she will be given a period of three months to 24 days of medical treatment based on the actual number of years he has been working and the number of years he has worked in the unit. The medical period of three months: (1) If the actual working years are less than ten years, three months if the actual working years in the unit are less than five years; six months if the actual working years are more than five years. (2) For those with actual working experience of more than ten years, six months for those with less than five years of working experience in the unit; nine months for those with more than five years and less than ten years; twelve months for those with more than ten years but less than fifteen years ; If it is more than fifteen years but not more than twenty years, it is eighteen months; if it is more than twenty years, it is twenty-four months. Article 4 stipulates that a medical treatment period of three months shall be calculated based on the accumulated sick leave time within six months; a medical treatment period of six months shall be calculated based on the accumulated sick leave time within 12 months; a medical treatment period of nine months shall be calculated based on the accumulated sick leave time within 15 months. ; For 12 months, it will be calculated based on the accumulated sick leave time within 18 months; For 18 months, it will be calculated based on the accumulated sick leave time within 24 months; For 24 months, it will be calculated based on the accumulated sick leave time within 30 months .
is as detailed in the table:
Note:
1. The calculation of the medical period should start from the first day of sick leave and be calculated cumulatively. For example: if an employee who should enjoy a three-month medical treatment period takes sick leave for the first time from March 5, 1995, then the employee's medical treatment period should be determined between March 5 and September 5. Here, A total of 3 months of sick leave during this period will be deemed as the expiry of the medical treatment period. Others can be deduced by analogy.
2. During sick leave, public holidays, holidays and statutory holidays are included. The standards of
and above are the standards in most areas of the country, but the regulations in Shanghai are different. The Shanghai Municipal People's Government issued the revised "Regulations on the Standards of Medical Periods for Workers in this Municipality Who Get Sick or Injured Not Due to Work During the Performance of Labor Contracts". Article 2 stipulates: The medical period shall be based on the conditions of workers in this city. The employer’s working life setting. In the first year of working in this unit, the medical period is 3 months; for every subsequent year of employment, the medical period is increased by 1 month, but not more than 24 months. As a result, the medical treatment period will be shorter than the normal time limit. For example, if an employee has worked for more than 10 years in total and has worked in the unit for 1/2/3 years, according to Document No. 479, he should enjoy a 6-month medical period; and according to Shanghai regulations, his medical period is 3/4/ In May, it was significantly shortened, infringing on the rights of workers.
(2) Medical period for special diseases
According to Document No. 479, the maximum medical period is 24 months. In practice, it is too rigid and cannot adapt to actual needs.Therefore, on May 23, 1995, the former Ministry of Labor issued a notice on the implementation of the "Regulations on Medical Treatment Periods for Enterprise Employees' Sickness or Non-work-related Injuries" (Ministry of Labor [1995] No. 236) (hereinafter referred to as "Document No. 235") ), Article 2 of the document stipulates that for certain employees suffering from special diseases (such as cancer, mental illness, paralysis, etc.) who cannot be cured within 24 months, the medical treatment period can be appropriately extended with the approval of the enterprise and the labor authority. . However, in practice, there are inconsistent understandings of "cannot be cured within 24 months", which has led to completely different results in judicial practice in dealing with issues involving the medical period of special diseases.
(3) If the working age changes during the medical period and leave, does the medical period need to be adjusted?
Since the medical period is determined based on the cumulative working years and the working length of the unit, during the period when the employee is enjoying the medical period, if the employee's cumulative working length or the working length of the unit crosses the period, the enterprise and the employee often have different understandings about the calculation of the medical period. The enterprise It is advocated that the medical treatment period be carried out according to the original determination, and the worker advocates that it be recalculated according to the length of service. If the employee's cumulative service time is 9 years and 8 months, and the employee's service time in the enterprise is 6 years, he can enjoy a 6-month medical treatment period according to the 479 document. When the medical leave reaches the 5th month, and the accumulated service experience reaches more than 10 years, can it be classified into the category of "accumulated service experience of more than 10 years, and service experience in the unit of more than 5 years and less than 10 years" at this time? Is the expiration date of the medical period determined based on 6 months or 9 months?
The answer is that it should still be determined based on 6 months. Article 3 of the 479 document stipulates that "when an enterprise employee needs to stop work for medical treatment due to illness or non-work-related injury, he or she shall be given three months' salary based on the actual number of years he has participated in the work and the number of years he has worked in the unit. Medical period from three months to twenty-four months:..." Document 236 stipulates that "the medical period shall be calculated from the first day of sick leave." From the literal meaning, the worker "stops working for medical treatment" and "the first day of sick leave." It is a time node, which is both the base date for calculating length of service and the start time of the medical period. We understand that this time point should be determined and not change at any time. Within the same medical period calculation period, if the employee's cumulative service length and the unit's service period change, the medical period period should not be adjusted.
3. Wages during the medical treatment period
According to Article 59 of the "Opinions on Several Issues Concerning the Implementation of the Labor Law of the People's Republic of China" issued by the Ministry of Labor, during the period of treatment for an employee's illness or non-work-related injury, he or she shall be paid within the specified period. During the medical treatment period, the enterprise shall pay its sick leave wages or disease relief fees in accordance with relevant regulations. Sick leave wages or disease relief fees may be paid lower than the local minimum wage standard, but cannot be lower than 80% of the minimum wage standard.
Article 3 of the Shanghai Municipal Labor Bureau's "Notice on Strengthening the Management of Enterprise Employees' Sickness Leave to Ensure the Life of Employees During Sickness Leave" (Shanghai Labor Baofa [1995] No. 83) stipulates that the number of days off for employees' illness or non-work-related injuries should be based on the actual leave. When calculating the number of days, any consecutive vacation period that contains rest days and holidays should be excluded. Article 4 stipulates the payment standards for sick leave wages and disease relief payments, as follows.
Article 5 of the Law stipulates that if an employee’s leave entitlement due to illness or non-work-related injury is less than 40% of the company’s average monthly salary, it shall be supplemented to 40% of the company’s average monthly salary. If 40% of the average monthly salary of an enterprise is lower than the city's regular living hardship subsidy standard for active employees, it should make up the amount to the city's regular living hardship subsidy standard for active employees. If an employee's illness or non-work-related injury benefits are higher than the city's average monthly salary in the previous year, the salary may be calculated based on the city's average monthly salary in the previous year.
4. Economic compensation and medical subsidies Payment conditions for rescinding or terminating the labor contract
When the medical period expires, the company may terminate or terminate the labor contract in accordance with the law and pay economic compensation and medical subsidies. Medical subsidy is additional financial compensation that should be paid to employees when the unit terminates or terminates the labor contract. It is a welfare treatment for sick employees.
(1) Article 40 of the "Labor Contract Law" stipulates that under any of the following circumstances, the employer may terminate the labor contract after notifying the employee in writing 30 days in advance or paying the employee an additional month's salary: (1) The employee is sick or injured not due to work and cannot engage in the original job after the prescribed medical treatment period, nor can he engage in work arranged separately by the employer; Article 46 stipulates that if there is any of the following circumstances: , the employer shall pay economic compensation to the employee: (3) The employer terminates the labor contract in accordance with the provisions of Article 40 of this Law.
(2) Payment of medical subsidy after rescission or termination of labor contract
Article 6 of the Notice of the Ministry of Labor on the issuance of the "Measures for Economic Compensation for Violation and Termination of Labor Contract" (Ministry of Labor [1994] No. 481) stipulates that, If an employee is sick or injured not due to work, and is confirmed by the Labor Appraisal Committee that he cannot engage in the original job or the job separately arranged by the employer and the labor contract is terminated, the employer shall, based on the number of years he has worked in the unit, terminate the labor contract. After one full year, a financial compensation equal to one month's salary shall be paid, and a medical subsidy equal to no less than six months' salary shall also be provided. Those who are seriously ill or terminally ill should also increase the medical subsidy fee. The increase in serious illness shall not be less than 50% of the medical subsidy fee, and the increase in terminally ill patients shall not be less than 100% of the medical subsidy fee. In 2017, the Ministry of Human Resources and Social Security issued the "Notice on the Fifth Batch of Invalidation and Abolition of Documents" (Ministry of Human Resources and Social Security (2017) No. 87), which clearly abolished the "Measures for Economic Compensation for Violation and Termination of Labor Contracts".
Later, the former Ministry of Labor paid medical subsidies when the labor contract was terminated. Article 22 of the "Notice of the Ministry of Labor on Several Issues Concerning the Implementation of the Labor Contract System" (Ministry of Labor (1996) No. 354) stipulates: If an employee becomes ill or is injured not due to work, and the labor contract is terminated at the expiration of the contract, the employer shall pay The medical subsidy fee shall not be less than six months’ salary; for those who are seriously ill or terminally ill, the medical subsidy fee shall be increased appropriately. On February 5, 1997, the General Office of the former Ministry of Labor issued the "Notice on the Interpretation of Issues Related to the Ministry of Labor (1996) No. 354 Document" (Laobanfa [1997] No. 18), clarifying the medical subsidy for the termination of the labor contract. It means "when an employee terminates the labor contract after the contract expires, and the medical period expires or the medical treatment is terminated and is assessed as grade five to ten by the Labor Appraisal Committee, the employer shall pay a medical subsidy of no less than six months' wages." From this, it can be seen that It can be seen that when the labor contract is terminated after the medical treatment period, the employer will pay medical subsidies only if the employee is identified as having a disability of level 5 to 10.
As a result, the provisions on medical subsidy payment upon termination of labor contract are abolished, while the provision on payment of medical subsidy upon termination of labor contract still exists. If the employer does not need to pay medical subsidy fees when the labor contract is terminated, but needs to pay when the labor contract is terminated, there will be an obvious imbalance in treatment. In practice, many local regulations and referees still insist that medical subsidies must be paid after the labor contract is terminated.
5. Calculation base for economic compensation and medical subsidy
After the expiration of the medical treatment period, the monthly salary of economic compensation and medical subsidy in the place where the labor contract is terminated shall be based on the average monthly salary before the labor contract is terminated or before taking sick leave. average monthly salary? The monthly salary after taking sick leave and before the termination of the labor contract is lower than the salary for normal labor provided by the employee. There is a difference in the calculation amount between the two methods.
(1) Calculation base of economic compensation
Article 47 of the "Labor Contract Law" stipulates that economic compensation shall be paid to the employee based on the number of years he has worked in the unit and one month's salary for every full year. If the period is more than six months and less than one year, it will be calculated as one year; if it is less than six months, the economic compensation of half a month's salary will be paid to the worker. If an employee's monthly salary is higher than three times the average monthly salary of employees in the region in the previous year announced by the people's government of the municipality or districted city where the employer is located, the standard of economic compensation paid to the employee shall be three times the average monthly salary of employees. The maximum number of years for which financial compensation will be paid shall not exceed twelve years. The monthly salary mentioned in this article refers to the average salary of the employee in the twelve months before the labor contract is terminated or terminated.
Article 27 of the "Regulations on the Implementation of the Labor Contract Law": The monthly salary of economic compensation stipulated in Article 47 of the Labor Contract Law is calculated based on the salary due to the employee, including hourly wages or piece-rate wages as well as bonuses, allowances and subsidies, etc. monetary income. If the employee's average salary in the 12 months before the labor contract is terminated or terminated is lower than the local minimum wage standard, the calculation shall be based on the local minimum wage standard. If an employee has worked for less than 12 months, the average salary will be calculated based on the actual number of months worked.
It can be seen from this that the monthly salary of economic compensation for terminating the labor contract after the expiration of the medical treatment period should be calculated based on the average salary of the twelve months before the labor contract is terminated.
(2) The calculation base of medical subsidies
Judicial decisions in various places tend to calculate based on the average salary of the twelve months before the termination of the labor contract. Workers advocate that the calculation standard be based on full salary or social security payment base (that is, before taking sick leave) (monthly salary), the courts mostly reject it and ultimately use the average monthly salary before the termination of the labor contract as the calculation base. Related cases:, (2018) Su 05 Min Zhong No. 8293, (2017) Guangdong 04 Min Zhong No. 33, etc.
Chongqing City has exceptions and clear regulations. Article 2 of the "Opinions on Several Issues Concerning the Implementation of the Interim Provisions on Sick Leave Benefits for Enterprise Employees in Chongqing City" (Yulaobanfa (2000233)) clearly stipulates: The employee's personal salary shall be calculated according to national statistics. The total salary stipulated by the bureau is calculated based on the employee's average monthly salary for the 12 months before the sick leave, and the calculation is based on the actual month for less than 12 months. Courts at all levels in Chongqing also conduct trials strictly based on this standard, such as retrial cases. According to this regulation, the average salary of the employee before taking sick leave will be used as the calculation basis.
Hunan Tiandiren Law Firm
Labor and Human Resources Legal Service Department
This legal service team consists of expert lawyers in labor law, work-related injury identification and compensation experts,
The team is composed of ten members, including labor dispute arbitrators, senior human resources managers, and tax accountants, who graduated from well-known domestic universities. With a professional and corporate team collaboration model, the team is committed to providing employers with a full range of services. Human resources compliance management non-litigation legal services, one-stop labor dispute litigation agency, to achieve the client's maximum rights and interests in every transaction or specific case,
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