[Case Introduction]
Chen joined an asset management company (hereinafter referred to as an asset company) in April 2015 to engage in after-sales service, and the two parties signed a two-year labor contract.
In June 2016, Chen became pregnant. From July to September 30 of the same year, Chen applied for three sick leaves to the asset company through WeChat based on the diagnosis opinion issued by a hospital A and hospital B. (The last sick leave period is from September 10 to September 30) (the last sick leave period is from September 10 to September 30).
On September 16, the company's personnel manager heard that Chen was shopping outside. On the same day, he called Chen and asked him to submit three medical invoices, medical records, examination reports, medication lists and other medical information for medical treatment in accordance with the rules and regulations before September 30, and to complete written leave procedures, otherwise he would be considered false sick leave.
Chen immediately replied to the company that he only had a medical leave certificate and had no medical information. Because he still had to rest in bed, he was unable to go to the company to go through the written leave procedures. Afterwards, Chen continued to rest at home and did not explain to the company why there was no medical record.
htmlOn September 30, the asset company terminated the labor contract between the two parties on the grounds that Chen had defrauded 65 days of sick leave.On October 10, 2016, Chen filed an arbitration application, requiring an asset management company to continue to perform the labor contract. During the trial, Chen said that there was no medical record. The doctor believed that his condition was simple and he needed to rest in bed, and no further examination and medication required, so he directly issued a medical leave certificate; and the basis for judging whether he needed a medical leave certificate should be a medical leave certificate stamped with the hospital seal. The company believed that the medical leave certificate was false and should provide evidence.
Asset Company stated that the rules and regulations clearly stipulate that applying for sick leave must provide detailed medical records. Chen cannot provide it, which is a violation of the regulations, so the company's termination of the labor contract is legal. In addition, the company's rules and regulations are formulated through democratic procedures and signed by Chen.
[Focus of Controversy]
Does the company must approve employee sick leave based on the medical institution’s medical leave certificate?
[Processing results]
Arbitration Committee rejected Chen's arbitration request.
[Case Analysis]
There are three different opinions in the process of this case.
The first opinion holds that Chen has provided a certificate of medical leave stamped with the hospital seal. As for the authenticity of the medical leave certificate, it is not determined by the arbitration institution. If the asset company does not provide evidence to prove that Chen is false sick leave, the certificate of medical leave should be determined to be legal and valid. Although the hospital that issued a medical leave certificate does not have Chen's registration records and other medical materials, it cannot be presumed that Chen does not need a medical leave, and it cannot be ruled out that there is no routine medical process. After a simple diagnosis, the doctor issued a medical leave certificate. Chen is in pregnancy, and the company should increase tolerance for the sick leave of pregnant female employees; the company's regulations on having to provide medical records before taking leave are too rigid. The company hastily terminated the labor contract without certifying the facts, which constitutes an illegal termination.
The second opinion holds that the rules and regulations of asset companies have been formulated democratic procedures and signed by Chen, and Chen, as an employee, should strictly implement and abide by it. Now that Chen fails to submit medical records required for sick leave in accordance with regulations, it should be deemed that sick leave is ineffective.
The third opinion believes that cannot determine whether sick leave should be approved based on whether there is a certificate of medical leave or whether the leave application procedures should be performed in accordance with the provisions of the rules and regulations. Instead, it should comprehensively consider the employee's condition and the objective reasons why the employee cannot perform the leave application procedures as required by the system.
This case ruling adopts the third view.
According to Article 2 of the Ministry of Labor’s notice on the issuance of the “Regulations of the Employees of Enterprises Being Injured or Not Working” (Ministry of Labor Law [1994] No. 479), the medical period refers to the time limit for employees of enterprise to stop working and treating and resting due to illness or not working injury.The former Ministry of Labor "Notice on Strengthening the Management of Employees with Retirement in Enterprises" (Labor Insurance No. [1992] No. 14) stipulates that if an employee needs to take leave due to injury or illness, he should rely on the disease diagnosis certificate issued by the enterprise medical institution or designated medical institution, and review and approval by the enterprise. As for how enterprises exercise their review and approval rights, no specific provisions have been made.
The author believes that employees have the right to be healthy. As long as the employee's condition is true and has a medical leave certificate issued by a professional medical institution and a complete medical leave record, the enterprise should of course review and approve sick leave. However, when the enterprise raises reasonable doubts about the authenticity of the medical leave certificate of the medical institution, the enterprise should be given the enterprise to review the employee's condition, medical leave records, etc., and then decide whether to approve or revoke the sick leave.
In this case, Chen claimed that he had bleeding during pregnancy and low progesterone, and had symptoms of threatened miscarriage, but he did not have the most basic registration records and medical records, which was obviously inconsistent with the routine medical treatment process. According to general medical knowledge, whether progesterone is low requires blood tests, but Chen did not have this examination item, and his condition was suspected of falsehood, and he did not provide other evidence to prove his condition. Therefore, a single medical leave certificate cannot be the basis for Chen to apply for sick leave.
The legal and effective rules and regulations are the basis for the company to manage employees. Chen neither provided specific treatment and diagnosis records as required by the system, nor actively explained the specific reasons to the company, thinking that the law provides unlimited protection for pregnant employees. His behavior constitutes a confrontation with the company's management, and his sick leave is not established, which constitutes a serious violation of discipline. Therefore, the company can terminate the labor contract with Chen.
In practice, if the employee's condition is true but does not provide medical materials or go through leave procedures as required, it should be treated differently according to the specific circumstances. If an employee fails to perform leave procedures as agreed due to objective reasons, the enterprise shall approve the employee's leave. If the employee maliciously refuses to cooperate with the handling of leave procedures when the company repeatedly urges the company to go through the leave procedures, the company may also not approve the leave. Labor Law not only protects the legitimate rights and interests of employees, but also protects the enterprise's independent employment rights.
[Revelation Thoughts]
In recent years, labor disputes caused by sick leave have continued to rise. Especially controversy caused by female employees taking sick leave during pregnancy, suffering from common diseases such as hypertension, diabetes, and lumbar disc herniation, is even more common.
The main reason for this kind of case is that the time for rest is that the hospital's medical leave certificate is too different from the company's expectations. Given that in practice, hospitals do issue false sick leave certificates based on factors such as human feelings, it is recommended that enterprises carefully identify false sick leave and strengthen factual investigations on the authenticity of sick leave.
In this case, the asset company only inferred that Chen had false sick leave by replying on the phone without medical records and immediately made a decision to terminate the labor contract. This was a great risk. If Chen provided medical records and examination reports during the trial, the asset company would be in a passive position.
In daily management, enterprises can take necessary preventive measures from the following aspects in order to reasonably prevent a few employees from malicious sick leave:
1. Establish a strict and standardized sick leave management system, clarify the conditions for applying for sick leave, the materials required to be submitted (sick leave application form, registered invoice, medical record book, medical expense documents, examination reports, sick leave certificates, etc.), leave request process, etc.;
2. Establish a reasonable review system for sick leave. , it is clear that the company has the right to review employees' sick leave to a third-party hospital;
3. Establish a long-term sick leave visit system, which not only reflects the company's care, but also plays a certain monitoring role in employees' sick leave;
4. Clarify the employees' responsibilities for false sick leave, and stipulate that if false sick leave is treated as absenteeism or the number of sick leave days reaches serious violations of discipline, the company can terminate the labor relationship free of charge and take relief measures such as the right to require employees to return their sick leave wages.
