What if the employee is seriously ill and unable to do the job?

Jiangsu Yunya Law Firm | Wan Haozhong Lawyer

introduction

If a worker is sick or not injured by work, resulting in incompetence of work, what should the employer do?

 

Lawyer interpretation

1. What is the medical period?

First of all, a concept should be clarified: the medical period. The medical period refers to the time limit for the employees of the enterprise to stop the labor contract due to illness or non-work-related injuries. According to the actual working years of the workers and the working years of the unit, the medical period varies from three months to twenty-four months.

 

It should be noted that this period does not need to be the laborer's continuous stop of work and treatment, but can be calculated cumulatively within a certain period of time. According to the actual working years of the workers and the working years of the unit, the period during which the medical period can be calculated cumulatively ranges from six months to thirty months.

For example, a worker who should be entitled to a three-month medical period should be determined between January 1 and June 1 if the patient is sick for the first time from January 1, 2018. The cumulative medical leave during the period of three months is considered to be the end of medical treatment.

(For details, please refer to the Notice of the Ministry of Labor on the Issuance of the Provisions on the Medical Period of Workers with Uninfected or Non-Work-related Injuries]

 

2. Under what circumstances can the labor contract be terminated?

After understanding the medical period, you can deal with the legal provisions and facts. According to the provisions of Article 42 of the Labor Contract Law, if the laborer is still in the medical treatment period, the employer shall not terminate the labor contract in accordance with the provisions of Articles 40 and 41. At this time, the employer shall still Paying the wages of workers can be paid according to the sick pay standard.

Only when the laborer is still unable to perform the original work after the prescribed medical treatment period, nor can he engage in work otherwise arranged by the employer, the employer can terminate the labor contract after notifying or paying one month's salary 30 days in advance.

At this point, the employer must pay attention to three points: 1. The premise of terminating the labor contract is that the laborer cannot engage in the original work and cannot perform the work arranged separately; 2. The procedure for the dismissal must be 30 days in advance to notify the laborer in writing or to pay additional The wages of the laborer for one month; 3. The employer shall pay economic compensation to the laborer.

The employer must distinguish whether the actual situation is whether the worker is injured or not injured or sick. The treatment of these two situations is completely different.

 

Related law

Notice of the Ministry of Labor on Issuing the Provisions on the Medical Period of Workers with Sickness or Non-Work-related Injury

Article 2 The medical period refers to the time limit for the employees of the enterprise to terminate the labor contract due to illness or non-work-related injuries.

Article 3 When an enterprise employee needs to stop working for medical treatment due to illness or non-work injury, he shall be given a medical period of three months to twenty-four months according to the actual working years of the employee and the working years of the unit:

(1) If the actual working life is less than ten years, the working period of the unit is less than five years for three months; for five years or more, it is six months.

(2) If the actual working life is more than ten years, the working period of the unit is less than five years for six months; for five years or more, the period is less than nine months; for ten years or more, the period is less than ten months. 18 years or more for twenty years or more; twenty-four months for more than twenty years.

Article 4 The three-month medical period shall be calculated according to the cumulative sick leave time within six months; the six-month period shall be calculated according to the cumulative sick leave time within twelve months; and the nine-month period shall be calculated based on the cumulative sick leave time within fifteen months; The two-month period is calculated based on the cumulative sick leave time within 18 months; the 18-month period is calculated as the cumulative sick leave time in twenty-four months; the twenty-four month is calculated based on the cumulative sick leave time within 30 months.

"Labor Contract Law"

Article 40 [No negligence dismissal] In any of the following circumstances, the employer may terminate the labor contract after notifying the employee in writing or paying the employee one month's salary in advance 30 days in advance:

(1) If the worker is sick or not injured by work, he or she cannot perform the original work after the prescribed medical period expires, nor can he engage in work that is otherwise arranged by the employer.

Article 42 If the employer has one of the following circumstances, the employer may not terminate the labor contract in accordance with the provisions of Articles 40 and 41 of this Law:

(3) Being sick or not injured by work, within the prescribed medical period;

Article 46 [Economic Compensation] In any of the following circumstances, the employer shall pay economic compensation to the laborer:

(3) The employer terminates the labor contract in accordance with the provisions of Article 40 of this Law.