First, what is called medical period? Medical period is absolutely can not be discharged?
According to the Ministry of Labor, "enterprise workers sick or non-work-related injuries, the medical period of the provisions of Article 2, the medical period refers to the enterprise workers due to illness or non-work-related injuries, stop work and rest shall not terminate the labor contract time limit. In fact, this definition is not complete, here shall not be terminated refers to the employer shall not be terminated, if the workers proposed to terminate or both parties negotiate the termination of the labor contract is not restricted by law. According to the Shanghai Municipality "on the city workers in the performance of labor contracts during the period of illness or non-work-related injuries of the medical period of standard provisions", the medical period refers to the worker's illness or non-work-related injuries to stop working and rest, and the employer shall not terminate the labor contract period. That is to say, the medical period is a certain period of dismissal protection for sick workers, the main purpose of which is to protect workers from losing their jobs due to the treatment of injuries and illnesses.
The provisions of the Labor Contract Law on the medical period are mainly Article 40 and Article 42, which mainly clarifies that enterprises shall not carry out non-fault dismissal (Article 40 of the Law) and economic layoffs (Article 41 of the Law) for employees during the medical period. Article 40 of the Law stipulates: "In any of the following cases, the employer may terminate the labor contract after giving 30 days' written notice to the worker or paying the worker an additional one month's salary: (1) If the worker is sick or injured not due to work, and is unable to engage in the original work after the expiration of the prescribed medical treatment period, or is unable to engage in the work that has been otherwise arranged by the employer; ...... "Article 42 of the Law, on the other hand, stipulates: "The employer may not terminate a labor contract in accordance with the provisions of Articles 40 and 41 of this Law if the worker: ...... ( (C) illness or non-work-related injury within the prescribed medical period; ......".
It should be clear that, for employees in the medical period, it is not the enterprise absolutely can not terminate. The Labor Contract Law only specifies that the enterprise can not carry out non-fault dismissal and economic layoffs during the medical period, and does not stipulate that the enterprise can not carry out fault dismissal (Article 39) and negotiation dismissal (Article 36). Therefore, for the medical period of the employee, the enterprise can its probationary period does not meet the conditions of employment, there is a serious violation of discipline, there is a serious fault reason to terminate its labor contract, but also with the communication, in the payment of economic compensation and other related matters under the premise of the negotiation of termination of its labor contract.
Second, how long is the medical period?
According to the relevant state regulations and policies, the medical period is mainly through the employee's actual participation in the work of the number of years and the number of years of work in the unit as the basis for determining the medical period, such as the Ministry of Labor, "enterprise workers sick or non-work-related injuries in the medical period of the provisions of" Article 3 provides that the enterprise workers due to illness or non-work-related injuries, the need to stop working for medical treatment, according to my actual participation in the work of the number of years and the number of years of work in the unit, to give three months to three months to five months. If the employee has worked for less than 10 years, he or she shall be given a medical treatment period ranging from 3 months to 24 months, depending on his or her actual length of service and the number of years he or she has worked in the organization: 1) 3 months if he or she has actually worked for less than 10 years, or less than 5 years if he or she has worked in the organization; and 6 months if he or she has worked for more than 5 years. 18 months for those with more than 20 years or less; and 24 months for those with more than 20 years.
In addition, according to the relevant provisions of the Opinions on the Implementation of Certain Issues (Ministry of Labor [1995] No. 309), for employees with certain special diseases (cancer, mental illness, paralysis) who are unable to recover within the 24-month medical treatment period, the medical treatment period can be appropriately extended with the approval of the enterprise and the local labor department.
Third, how to calculate the medical period?
In practice, the employee if the continuous medical leave, the continuous calculation of the medical period until the expiration of the period, naturally, there will be no problem. But more ...... >>
Question 2: What proof do employees need to submit to the medical period Hospital diagnostic certificate
Question 3: Diagnostic certificates must be built to rest before applying for a medical period Yes
Question 4: What proof do patients have to provide the company with during the medical period Hospitalization certificates or diagnostic certificates
Question 5: How to apply for a medical period Employees can apply for a medical period as long as they With the hospital sick leave certificate, leave can be.
Problem six: the expiration of the medical period to go to work need a doctor's certificate need a doctor's certificate, three days of absenteeism can not be dismissed employees. Whichever way to leave can receive unemployment insurance. If you say you can not do the job need reasons and sufficient evidence, need to prove, otherwise can not explain.
Question 7: About the medical period What are the conditions for enjoying the medical period
The former Ministry of Labor, "the medical period of enterprise workers sick or non-work-related injuries," pointed out that the medical period refers to the time limit for the employee to stop working due to illness or non-work-related injuries to take a break from work to cure and rest and not to terminate the labor contract. This definition defines the rights and obligations of both parties to a labor relationship in the event of an employee's illness. First of all, sick or non-work-related injuries employees have the right to stop work and rest, but to enjoy this right need to have certain conditions, that is, sick or non-work-related injuries to a certain extent, diagnosed by the medical and health institutions, that should be rested, and issued a sick leave recommendations (certificate); at the same time, sick or non-work-related injuries employees have the conditions of enjoying the medical treatment period have to the employer to ask for leave, or the obligation to inform the employer. Secondly, the employer is obliged to provide medical treatment for the sick workers, and should provide them with the corresponding treatment during the medical period provided by law, and shall not terminate the labor contract or labor relations of the workers during the period of medical treatment; at the same time, the employer has the right to manage all the workers, including the workers during the medical period. In this case, the employer is not because Zhang enjoys the medical period and terminate the labor contract, but based on the expiration of the period of sick leave, that is, did not take leave and did not go to work, constituting a disciplinary fact. In short, during the period of labor relationship, the employee shall have three physical elements to enjoy the medical period: firstly, the fact of illness or non-work-related injury, secondly, the certificate of rest from the hospital, and thirdly, the fulfillment of the procedure of informing or requesting for leave. The employer should allow the employee to enjoy the medical period, which is the right given by law to the workers.
Whether a worker who has already enjoyed the medical period needs to go through the procedure of renewing the leave
The length of the medical period of the sick worker is determined by the actual years of work, the number of years of work in the organization and the condition of the worker. The length of service is the standard for calculating the length of the medical period, which determines the eligibility for the medical period. On the other hand, whether or not a medical leave is required and the actual duration of the medical leave are determined by the medical institution's diagnosis based on the patient's medical condition. Therefore, the condition of the illness and the diagnosis made by the medical institution are the key to determining the employee's entitlement to the medical period. Since the actual duration of the sick worker's medical leave depends on the medical institution's diagnosis of the condition, the employer must also determine through the sick worker's diagnostic certificate when providing the employee with a medical leave. Based on the above analysis, although the sick worker has entered the medical period, enjoying the medical treatment, but when the expiration of the period of sick leave need to continue the sick leave treatment, should promptly notify the unit of the next stage of sick leave, only in the case of informing the employer, the fact that the medical period can be truly realized. Already enjoying the medical period of the employee in addition to the unit in reaching a **** knowledge, or has been agreed to by the unit, are required to apply for renewal of leave procedures.
In the medical period workers should still comply with the unit's rules and regulations
Article 4 of the Labor Law stipulates: "Employers shall establish and improve the rules and regulations in accordance with the law, to ensure that workers enjoy their rights and fulfill their labor obligations." The law gives the employer the right to establish rules and regulations in accordance with the law. This is both a right given to the unit by law and a means of ensuring the effective fulfillment of the labor contract and safeguarding the lawful rights and interests of both the workers and the employer. The employer shall, in accordance with its own production and management characteristics, formulate rules and regulations in line with the needs of its own production and management in accordance with the law, which shall be observed and implemented by its employees. Employees who are entitled to medical treatment are members of the employing organization, and the rules and regulations of the employing organization shall be binding on sick employees. During the period of rest from illness, the employee shall abide by the rules and regulations of the employer. Similarly, the employer should also apply the relevant rules and regulations according to the actual situation of the sick employee.
According to the case of Zhang's claim. As well as the actual situation that he is already in the medical period, the Arbitration Council or the court is necessary to understand whether there is a valid reason for his failure to submit a leave slip in a timely manner. If Zhang produced the employer does not have leave system or unit has agreed to make up the leave formalities and other evidence, the unit because Zhang did not renew the leave formalities to continue to take sick leave at home, the behavior of the termination of the labor contract, it is clear that the facts of the disciplinary action is not sufficient. If the employer's rules and regulations are sound, and Zhang knew the employer's leave system but did not comply with the employer according to the relevant provisions of the system, to deal with its disciplinary behavior, the facts and legal basis.
From the perspective of prevention and avoidance of labor disputes, the employer as a manager, in the discovery of Zhangmou sick leave period has come to rest, can also take the initiative to ask the reason, and require it to make up for the leave procedures. In this case, Zhang has been enjoying the medical treatment, the employer has been aware of the special circumstances of his illness, if the employer to take to urge, remind him to make up for the leave formalities, but still not effective, and then to deal with it, reflecting the employer's humane management and the care of the sick workers, also can achieve the purpose of standardized management. This ...... >>
Question 8: What proof is needed for the company's employees to take sick leave Need to provide medical institutions with relevant medical records to the employer, and according to the company's prescribed procedures to take leave. The specific time of the sick leave should be based on the medical institution's recommended recuperation time, as well as the employee's own actual participation in the work of the number of years and the number of years of work in the unit to determine.
Legal basis: "enterprise workers sick or non-work-related injuries medical period provisions"
Article 2 medical period refers to the enterprise workers due to illness or non-work-related injuries to stop working to cure the rest shall not terminate the labor contract time limit.
Article 3 enterprise workers due to illness or non-work-related injuries, the need to stop work for medical treatment, according to their actual years of participation in the work and the number of years of service in the organization, to give three months to twenty-four months of medical treatment:
(a) the actual years of service of less than ten years in the organization for less than five years for three months; more than five years of work for six months.
(2) For those with more than ten years of actual service, six months for those with less than five years of service in the organization; nine months for those with more than five years and less than ten years; twelve months for those with more than ten years and less than fifteen years; eighteen months for those with more than fifteen years and less than twenty years; and twenty-four months for those with more than twenty years.
Article 4 of the medical period of three months by six months of cumulative sick leave time; six months of cumulative sick leave time by twelve months; nine months of cumulative sick leave time by fifteen months; twelve months of cumulative sick leave time by eighteen months; eighteen months of cumulative sick leave time by twenty-four months; twenty-four months of cumulative sick leave time by thirty months.
The question of the nine months' sick leave was asked.
Question 9: medical period need to open a sick leave note All sick leave, are entitled to submit a sick leave note.
Workers take sick leave, should be the employee himself to the employer's designated medical institutions, after examination by a licensed physician, the need to stop work for treatment and recuperation, by the licensed physician to issue a sick note, the employee with a sick note in accordance with the employer's prescribed procedures for leave procedures. However, in case of emergency, you can be admitted to the nearest hospital and take leave orally, even if you make up the formalities afterwards.
The Law of Practicing Physicians
Article 23 Physicians implementing medical, preventive and health care measures, signing the relevant medical documents, must be personally diagnosed, investigated, and in accordance with the provisions of the timely completion of medical documents, shall not be hidden, forged or destroyed medical documents and related information.
The Ministry of Labor, the State Council Economic and Trade Office, the Ministry of Health, the State Administration for Industry and Commerce, the All-China Federation of Trade Unions
"on the strengthening of the management of enterprise injury and illness of the long rest of the management of employees"
Labor Insurance Word [1992] No. 14
Second, we must adhere to and improve the enterprise's injury and illness of the employee's leave and return to work system. If an employee needs to take a leave of absence due to injury or illness, he or she shall present a certificate of diagnosis of the disease issued by the enterprise's medical institution or designated hospital, and shall be examined and approved by the enterprise. Injured or sick employees need to transfer to the long rest, according to the enterprise medical institutions or designated hospitals issued by the diagnosis of disease, by the enterprise labor appraisal committee (group) to make the identification of the administrative approval by the enterprise.
Question 10: What proof of the employee medical period to be afraid of negative effects can be used with the use of traditional Chinese medicine ingredients, more gentle, such as love Lijiu. No chemical anesthetics do not have to worry about.