According to Article 2 of the Ministry of Labor's "Provisions on the Medical Treatment Period for Sickness or Non-Work-Related Injury of Enterprise Employees," the medical treatment period refers to the time limit within which an enterprise employee may not terminate his or her employment contract due to illness or non-work-related injury, and may not stop work to rest from illness or rest from work to cure the disease. 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 sides negotiate the termination of the labor contract law is not to do restrictions. 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, its main purpose 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 stipulated in Article 40 and Article 42, which mainly clarify 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 after the expiration of the stipulated medical treatment period, the worker is unable to engage in the original work, or 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) Sickness or injury not due to work, within the prescribed period of medical treatment; ......".
It should be clear that for employees in the medical period, it is not that the enterprise absolutely can not terminate. The Labor Contract Law only specifies that enterprises cannot carry out non-fault dismissal and economic layoffs during the medical period, and does not stipulate that enterprises cannot carry out fault-based dismissal (Article 39) and negotiated 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 reasons to terminate the labor contract, but also with the communication, under the premise of the payment of economic compensation and other related matters to reach an agreement on the negotiation of termination of the 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, "the 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 be given from three months to three months to three 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 more than 20 years and less; and 24 months for more than 20 years.
Additionally, according to the relevant provisions of the Opinions on Several Issues Concerning the Implementation and Enforcement of the <Labor Law> (Ministry of Labor [1995] No. 309), for certain special diseases (cancer, mental illness, and paralysis) employees who cannot be cured within the 24-month medical treatment period may be given an appropriate extension of medical treatment with the approval of the enterprise and the local labor department.
Three, how is the medical period calculated?
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 often than not, the employee will produce some intermittent sick leave, this situation should be how to calculate the medical period? If the medical leave is intermittent, the medical period can be calculated cumulatively. According to the Ministry of Labor on the issuance of "enterprise workers sick or non-work-related injuries in the medical period of the provisions of the notice" (Ministry of Labor [1994] No. 479), Article 4, the medical period of three months by six months of the cumulative sick time; six months of the cumulative time of 12 months of the cumulative time of 12 months of the cumulative time of the cumulative time of sick time; nine months of the 15 months of the cumulative time of the cumulative time of 15 months of the cumulative time of sick time; 12 months of the 18 months of the cumulative time of the cumulative sick time of 18 months of calculation; 18 months of the 24-month cumulative time of sick time The calculation is based on accumulated sick leave time within 24 months for 18 months and 30 months for 24 months.
The specific calculation method can be in accordance with the Ministry of Labor "on the implementation of & lt; enterprise workers sick or non-work-related injuries medical care period regulations & gt; notice" (Ministry of Labor [1995] No. 236), that is, the medical care period should be calculated from the first day of sick leave, the cumulative calculation. For example: enjoy 3 months of medical period of the employee, if the first sick leave from March 5, 1995, then the employee's medical period should be determined between March 5 and September 5, during which the cumulative sick leave of 3 months is considered to be the expiration of the medical period. Others shall follow in a similar fashion.
When the cumulative sick leave time is equal to the medical period means that the medical period has expired, for example, an employee's medical period of three months, March 1, 2008 began to take sick leave, if the continuous sick leave, June 1, the expiration of the medical period. It is important to note that this is calculated in terms of natural months. If the sick leave is taken intermittently, the cumulative time should be calculated as 30 days/month, and if the cumulative time of sick leave taken before September 1 exceeds 90 days, the medical period will be considered to have expired.
In summary, the basic steps for calculating the medical period are: 1) determine the length of the medical period based on the number of years of service; 2) determine the calculation period for the cumulative sick leave based on the length of the medical period, e.g., if the medical period is 3 months, the calculation period for the cumulative sick leave is 6 months; 3) determine the cumulative sick leave time within the calculation period determined in the previous step. It should be noted that there are specific regulations on the duration of the medical period and the calculation method, you need to follow the local regulations
Four, the relationship between the medical period and sick leave?
In daily life, it is relatively easy to confuse the relationship between the medical period and sick leave, the main difference between the two is that: the medical period is a "legal" period, the law according to the length of service of the employee's "rigid" time period, for example, one year of work, the medical period of three months, the medical period of three months, the medical period of three months, the medical period of three months, the medical period of one year of work, the medical period of three months. For example, if you have worked for one year, the medical period is 3 months, and these 3 months are dead, unless your working years have changed; while the sick leave is a "factual" period, which is a "flexible" period of time, for example, if you have taken a 4-month sick leave, the medical period is only 3 months, and the sick leave is only 3 months. For example, if you are on sick leave for 4 months and the medical period is only 3 months, the period of sick leave is still considered as 4 months. In other words, the medical period is a fixed period of time specified by law, while the sick leave is a period of time during which the employee is sick or injured at work and in fact needs to receive medical treatment.
In practical management, many enterprises have a view that since the state provides for the medical period system, so for employees who have completed the medical period to apply for sick leave, the enterprise can not be approved. In fact, the regulations and policies on the medical period do not confirm that enterprises can not arrange sick leave for employees after the expiration of the medical period. The relevant regulations and policies only stipulate that the enterprise can terminate the labor contract after the expiration of the medical period, that is to say, the enterprise can terminate the labor contract after the expiration of the medical period of the employee, but if the enterprise chooses to maintain the labor relationship, it can't therefore not arrange for the employee's sick leave. More pragmatic approach is that if the employee chooses to apply for leave instead of applying for sick leave, the enterprise can not exercise the right to terminate the contract, this practice is based on the consent of both parties, can not be said to violate the relevant provisions of the actual operation.
V. How should sick leave applications be managed? How should false sick leave be prevented?
Medical period is mainly through the "sick" or "non-work-related injuries" to be defined, in practice, mainly through the hospital issued sick leave (vacation) as a form of evidence to prove. So, can the enterprise designate a specific hospital to issue sick leave? Usually think, to where the right to free choice of employees, and as long as the medical insurance hospital, and will not affect the reimbursement of medical expenses, as long as it is the medical insurance hospital should be issued by the sick leave is valid. Of course, the special circumstances of the emergency room and other special circumstances, can be appropriate exceptions, by the employee after the completion of the can also.
For some companies in the rules and regulations of the specific hospital designated to see the doctor, whether it is necessarily considered invalid? This depends on the specific situation. If the designation of these hospitals does not affect the employee's right to medical treatment and convenience, and the rules and regulations to fulfill the democratic procedures or public procedures (or inform the workers), then the employees should be implemented, that is to say, unless the special circumstances, only the hospital designated by the enterprise to open the sick leave order is valid. Of course, if the enterprise's designation of hospitals violates the principles of fairness and convenience, such designation should be unreasonable, and the employee should apply for leave from the enterprise with a sick leave certificate issued by an appropriate hospital, and the enterprise should approve it.
For false sick leave, many enterprises HR are more headaches, but for employees to submit sick leave, and do not know how to verify and deal with, on the employee of such behavior can be terminated labor contract there is concern. In fact, false sick leave can be prevented and dealt with from two aspects: First, strict sick leave application process, must be submitted to the appropriate hospital doctor issued sick leave, and fill in the format of the sick leave application form, in the application form for employees to note the name of the doctor and contact information, while the sick leave application form also contains a statement of the employee: "If the sick leave application is false or deliberately exaggerated, in the company are all the employees of the company, and the company will not be able to take any action. If the sick leave application is false or intentionally exaggerated, in the company are considered serious disciplinary actions, the company can carry out the appropriate disciplinary action until the termination of the labor contract"; Second, for false sick leave, in the rules and regulations or labor contracts should be clear that the application of false sick leave is a serious violation of disciplinary circumstances, and the seriousness of the situation, the number of days of leave, the company can be directly terminated the labor contract. When employees apply for sick leave there is false or fraudulent behavior, the company can be based on these provisions of the corresponding treatment.
VI. What rights and interests do employees enjoy during the medical period and sick leave? What obligations should be fulfilled?
According to the Labor Contract Law and related laws, the rights and interests during the medical period are mainly manifested as follows: (1) during the medical period, the enterprise can't carry out non-fault dismissal; see Article 42 of the Labor Contract Law; (2) the labor contract has not expired, but the sick leave has exceeded the medical period, the enterprise can carry out non-fault dismissal, but it should carry out the obligation of 30 days' notice in advance or pay the payment of wages in lieu of notice. In addition, economic compensation shall be paid; see Article 46 of the Labor Contract Law; (3) if the labor contract has expired but the medical period has not yet expired, the term of the contract shall be extended until the expiration of the medical period; see Article 45 of the Labor Contract Law, etc.; (4) during the period of medical treatment, the wages for the sick leave, the relief of illness and medical treatment of the enterprise employees shall be implemented in accordance with the relevant provisions.
In practice, the injury and illness leave employees often use the leave leisure to engage in part-time activities, the enterprise can intervene? Injury and illness leave employees are still employees of the enterprise, so still need to comply with the rules and regulations of the enterprise. According to the former 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 strengthening the management of enterprise injury and illness of the long rest of the staff management notice" (labor insurance word [1992] No. 14), the injury and illness of the employees on leave may not be engaged in income-generating activities. Institutions, institutions, social organizations and enterprises may not employ workers on sick or injury leave. Employees who utilize their sick leave to engage in income-generating activities are required to cease their sick and injury insurance entitlements, not be reimbursed for their medical expenses, and be given a deadline to return to their units and return to work. In practice, an employee on sick leave who engages in other income-generating activities can be ordered to make corrections, and if he or she refuses to do so, the labor contract can be terminated as a serious disciplinary infraction.
VII. Payment of wages during sick leave
Since the regulations vary from place to place, we will only take Shanghai as an example. According to the "Shanghai Municipal Labor Bureau on strengthening the management of enterprise workers on sick leave to protect the workers during sick leave life notice" (Shanghai labor insurance hair [95] 83), "Shanghai Municipal Bureau of labor and social security on the city's enterprise workers on sick leave wages or minimum standard of sickness relief" (Shanghai labor insurance insurance hair [2000] 14), "Shanghai Municipal Labor Bureau on the issuance of the" Shanghai Municipal Enterprises Wage Payment Measures" Notice" (Shanghai Labor Insurance Comprehensive Development [2003] No. 2) and other relevant regulations and policies, enterprises in the medical period should be given to the employee's treatment is as follows:
1, sick leave treatment. (1) the employee's illness or non-work-related injury within six months of continuous leave, the enterprise shall pay sick leave wages in accordance with the following standards: less than two years of continuous service, 60% of my salary; two years of continuous service less than four years of continuous service, 70% of my salary; four years of continuous service less than six years of continuous service, 80% of my salary; six years of continuous service less than eight years of continuous service, 90% of my salary; four years of continuous service less than six years of continuous service, 90% of my salary; six years of continuous service less than eight years of my salary; six years of continuous service less than eight years of my salary, 90% of my salary; the employee's salary is calculated as follows. If the employee has worked continuously for 8 years or more, he/she shall be paid 100% of his/her salary. (2) the employee's illness or non-work-related injury for more than six months of continuous leave, the enterprise to pay the sickness relief, of which less than one year of continuous service, according to 40% of my salary; continuous service of one year less than three years, according to 50% of my salary; continuous service of three years and above, according to 60% of my salary.
Tips: on sick pay and sickness relief
The former Ministry of Labor "on the implementation of the" Labor Law "Opinions on a number of issues" (Ministry of Labor [1995] No. 309), Article 59 of the provisions of the "sick pay" is for the implementation of social health insurance has not yet been co-ordinated by the employer, the extension of the original medical insurance provisions. The term "sick leave pay" in Article 59 is used in accordance with the new medical insurance regulations for those employers who have not yet implemented social medical insurance, while "sickness relief pay" is used in accordance with the new medical insurance regulations for those employers who have already implemented social medical insurance, which is a standardized way of referring to sick leave pay. According to the above provisions, if an employee is ill or injured not due to work, the enterprise shall pay him sick leave wages or sickness relief expenses during the prescribed medical treatment period in accordance with the relevant regulations. Sick pay or sickness relief may be paid at a rate lower than the local minimum wage, but not less than 80% of the minimum wage.
It should be noted that, in accordance with the relevant regulations and policies of Shanghai, the payment of sick leave wages and the following special provisions: (1) the number of days of leave for illness or non-work-related injuries should be calculated according to the actual number of days of leave, consecutive leave period contains rest days, holidays should be excluded. (2) If an employee's treatment for illness or non-work-related injury is higher than the city's average monthly wage for the previous year, it may be calculated on the basis of the city's average monthly wage for the previous year. (3) If the employee's leave entitlement for illness or non-work-related injury is less than 40% of the enterprise's average monthly wage, it shall be replenished to 40% of the enterprise's average monthly wage, but it shall not be higher than the employee's original wage level or higher than the city's average monthly wage of the employees in the previous year. (4) If 40% of the average monthly wage of the enterprise is less than 80% of the minimum wage standard of the employees of the enterprise in the current year, it shall be replenished to 80% of the minimum wage standard of the employees of the enterprise in the current year. (5) The minimum standard of sick leave pay or sickness relief pay for enterprise employees does not include the pension, medical care, unemployment insurance premiums and housing provident fund that should be paid by the employees.
Table 3: Shanghai workers medical sick leave wages list:
Calculation of the length of service Sick leave wages
Continuous leave of six months within the continuous service of less than 2 years of age 60% of my salary
Continuous service of 2 years of age less than 4 years of age 70% of my salary
Continuous service of 4 years of age less than 6 years of age 80% of my salary
Continuous service of 4 years of age less than 6 years of my salary. 80% of my salary for 6 years of continuous service and less than 8 years of continuous service 90% of my salary
100% of my salary for 8 years of continuous service and more
40% of my salary for more than 6 months of consecutive leave and less than 1 year of continuous service
50% of my salary for 1 year of continuous service and less than 3 years of continuous service
50% of my salary. For 3 years or more of continuous service, 60% of the salary of the employee
2. Determination of the base for sick leave pay. Calculation of daily wages for sick leave taken within the working days of the system: the calculation base determined in accordance with the following principles shall be divided by the pay day of the month in which it occurs. (1) If there is an agreement in the labor contract, it shall be determined according to the wage standard not lower than the corresponding wage standard of the position (position) of the worker himself as agreed in the labor contract. If the standard determined by the collective contract (collective wage agreement) is higher than the standard agreed in the labor contract, it shall be determined according to the standard of the collective contract (collective wage agreement). (2) If neither the labor contract nor the collective contract stipulates the standard, the standard may be determined through collective wage negotiation between the employer and the representatives of the workers, and the result of the negotiation shall be the signing of a collective wage agreement. (3) In the absence of any agreement between the employer and the worker, the basis for calculating vacation pay shall be uniformly determined at 70% of the monthly wage for normal attendance at the position (job) in which the worker is employed. The basis for calculating vacation pay in accordance with the above principles shall not be lower than the minimum wage standard set by the city. Where laws and regulations provide otherwise, the provisions shall apply.
Eight, the medical termination of the medical period has not yet expired, medical termination of the medical period, medical treatment has not yet ended but the medical period has expired
Medical termination, refers to the medical institutions or physicians on the work of accidental injuries or occupational diseases suffered by the diagnosis and treatment of the whole process of the end of the end of the disease, including the condition of the end of the examination, confirmation of diagnosis, medication, surgical treatment, and other medical measures. The end of medical treatment is the basis for determining whether the condition is cured or disabled. The end of medical treatment for an employee who has suffered an accidental injury at work or suffered from an occupational disease must be determined by the designated medical institution or occupational disease prevention and control organization. In order to properly deal with the employee suffered accidental injury at work or suffering from occupational disease of the medical period, favorable production and treatment, so that the work of labor capacity appraisal work normally, some regions combined with the practice of the development of a specific medical termination of the appraisal standards, the medical termination of the time, the medical termination of the standard has made specific provisions.
(1) medical termination of the medical period has not expired
According to the Ministry of Labor on the issuance of the "enterprise workers sick or non-work-related injuries of the medical period of the provisions of the notice" (Ministry of Labor [1994] No. 479), Article 6 provides that the enterprise workers are not due to work-related disability and the doctor or medical institution determined to be suffering from difficult to treat the disease, in the medical treatment within the medical period of the medical termination of the work, can not be engaged in the original work, and can not engage in the employer to arrange another. If they are unable to engage in work otherwise arranged by the employer, the Labor Appraisal Committee shall appraise their labor capacity with reference to the "Standards for Appraising the Degree of Loss of Labor Capacity of Employees Who Are Disabled Outside of Work or Due to Disease (for Trial Implementation)" (Laoshaifa [2002] No. 8). Those identified as Grade 1 to 4 shall withdraw from the labor position, terminate the labor relationship, go through the retirement and retirement procedures, and enjoy the retirement and retirement treatment; those identified as Grade 5 to 10 shall not be allowed to terminate the labor contract during the medical treatment period.
(2) medical termination when the medical period expires
According to Article 7 of the Notice of the Ministry of Labor on the Issuance of Provisions on the Medical Treatment Period for Sickness or Non-Work-Related Injury of Enterprise Employees (Ministry of Labor [1994] No. 479), enterprise employees who are not disabled at work and who are recognized by a doctor or a medical institution as suffering from an intractable disease, and whose medical treatment period has expired, should be referred to by the Labor Appraisal Committee with reference to the provisions of the "Regulations on the Medical Treatment Period for Sickness or Non-Work-Related Injury of Enterprise Employees". Criteria for Appraisal of the Degree of Loss of Labor Capacity due to Disability or Illness other than for Work (for Trial Implementation) (MLSI [2002] No. 8) for the appraisal of labor capacity. Those who are appraised as Grade I to Grade IV shall withdraw from the labor position, terminate the labor relationship, and go through the procedures of retirement and dismissal to enjoy the retirement and dismissal treatment.
(3) Medical treatment has not yet ended but the medical period has expired
Standing in the position of the enterprise, there are two corresponding methods of treatment, one is the termination of the labor contract (the term of the labor contract is far from expired), one is the expiration of the termination of the labor contract (the term of the labor contract is about to expire).
A. Termination of labor contract (non-fault termination) with 30 days' notice (or payment of 1 month's wages in lieu of notice) and economic compensation corresponding to the length of service. According to the Ministry of Labor on the issuance of the "violation and termination of the labor contract of economic compensation methods" notice (Ministry of Labor issued [1994] No. 481), the worker is sick or non-work-related injuries, the labor appraisal committee confirms that it can not engage in the original work, or can not be engaged in the employer to arrange for another job and terminate the labor contract, the employer should be in accordance with the number of years of service in the unit, for each year of 1 year, to be paid 1 The employer shall, in accordance with the length of service in the organization, pay economic compensation of one month's wages for every one year of service, as well as medical subsidies of not less than six months' wages. In the case of serious and terminal illness, the medical subsidy shall be increased by not less than 50% of the medical subsidy in the case of serious illness, and by not less than 100% of the medical subsidy in the case of terminal illness.
B. Termination of the labor contract upon expiration and payment of economic compensation for years of service after January 1, 2008 According to the general office of the ministry of labor "on the interpretation of the ministry of labor [1996] document 354 notice of the relevant issues," the notice "article 22" "the worker is sick or not due to work-related injuries, the termination of the labor contract at the end of the contract period, the employer shall pay not less than six months' wages of the medical subsidy" refers to the expiration of the contract period. When a worker terminates his employment contract, the employer shall pay a medical subsidy of not less than six months' wages if the worker's medical treatment expires or the medical treatment is completed and the employer is appraised by the Labor Appraisal Committee to be grade 5 to 10. If the appraisal is grades 1 to 4, the employer shall go through the procedures of retirement and dismissal and enjoy the retirement and dismissal treatment.
C. As to whether medical subsidies need to be paid in the above two cases. In the first case, the conditions for payment of the termination of the labor contract are: a. Confirmed by the Labor Appraisal Committee as unable to engage in the original work; b. Also unable to engage in the work otherwise arranged by the employer; in the second case, the conditions for payment of the expiration and termination of the labor contract are: a. expiration of the medical period or medical treatment is terminated; b. appraised by the Labor Appraisal Committee as grade 5 to 10. If the above conditions are not met, the enterprise does not need to pay medical assistance.