배움과 공유의 시간

03 Care of sick leave

One of the most complicated and difficult areas of Chinese labor law is the issue of sick leave. In particular, problems such as long-term sick leave due to illness and injury, how to calculate the medical period, and how to pay sick leave wages during the period of sick leave have no clear criteria across China and are operated differently by provinces.
In China, the payment of sick leave wages is mandatory even during the period of sick leave, and it is not possible to lay off the medical plane during the period of employment protection, so there are frequent cases of abuse of sick leave such as false disease and fake illness. Therefore, companies need to take measures to prevent abuse of sick leave.

1. Concepts of medical devices

(1) Understanding medical devices

If an employee is absent from work for reasons unrelated to his or her work, the employee shall apply for sick leave to the company by attaching a doctor's certificate, and the company shall grant" sick leave" if the employee complies with the sick leave conditions. In case of a disease or injury that requires months of long-term care, the company cannot wait until it is fully recovered indefinitely, although an employee may need a period of employment guarantee to be treated with confidence. In order to reconcile these conflicting interests between labor and management, there is an unfamiliar rule for us called "medical period."
Medical devices are not "duration of care," but "enjoying legal rights to care" by employees.
Means the period. During this period, the company cannot unilaterally terminate the labor contract, and the period is
Even if the labor contract expires within the period, the contract expiration date is automatically deferred until the end of the medical period.
However, even during this period, the lifting of disciplinary action due to the negligence of workers (Article 39 of the Labor Contract Act) and
The lifting of the mutual agreement (article 36) is possible.

the difference between sick leave and medical equipment
"Sick leave" and "medical machine" have different personalities. "Sick leave" is the period during which a worker is suspended and treated with the approval of the company, with the approval of the company, the period varies according to the condition, and is a kind of physiological concept. On the other hand, the "medical machine" is a legal concept, and the medical period is a worker.
The period of employment is defined according to the years of service, and the period of employment is protected according to the regulations.

Criteria for setting up medical devices
When an employee ceases to work and receives treatment, he or she is granted medical equipment ranging from three to two to four months depending on the number of years of service (Article 3 of the Regulations for Medical Periods due to Corporate Work Disease or Non-Work Injury) in 1994.

(2) Criteria for setting up medical devices

The length of the medical period depends on the employee's service life. In accordance with the above provisions, common national medical period standards are applied, but in the case of Shanghai, it is important to note that independent medical period regulations are promulgated and independent calculation methods are employed.

1 Common medical device setup across the country

The national common "medical instrument" setup standard stipulates that not only one's own company but also another's service years are combined. 1 The "Tongsan Service Years," including the years of service of the company in which I worked in the past, and 2 The "Medical Machines" are calculated on two axes. Employees' past service years in the company are responsible for proof, and the company does not need to accept claims of years of service that have not been clearly identified by social insurance payment records.

National Commercial Medical Instruments Standards (Shanghai is subject to separate rules)
third-party
Calculation cycle of "Total Service Years" in this company for the legal period of medical care
Less than five years, three months and six months
More than five years, six months, 12 months.
10 years or less, 6 months and 12 months
not more than five years, not more than ten years, nine months, and fifteen months.
For more than 10 years, 15 years, 12 months, 18 months.
18 months and 24 months, 15 years or less.
More than 20 years, 24 months and 30 months.

calculation of medical instruments
If an employee is on sick leave and continues to receive treatment without going to work, the medical device is terminated at the expiration of the applicable medical deadline. However, if the employee is treated repeatedly and is on a regular basis, the medical device calculation is calculated as a cumulative number of sick leave within a given medical device’s computation cycle. In other words, if the legal medical period is three months, the medical instrument calculation cycle is given six months, during which the medical device expires at a time when the accumulated number of sick days reaches three months.

[Method of calculation of medical instruments]
1 Determining the legal medical period based on the number of years of service
2 Determining the "calculation cycle" based on the medical period
3 The accumulated number of sick days within the "calculation cycle" determined in paragraph 2 above confirms the maturity of the medical device.

After the calculation cycle has passed without exceeding the legal period, the acquired "medical instrument" is reset and, in the event of a disease or injury, a new "medical instrument" can be acquired. For example, if a medical care period of three months was granted as a six-month calculation cycle, and the medical care period used as a cumulative period is 2 months and 29 days, and the calculation cycle of the six-month period has elapsed, and the disease and injury occur again at any point since then, again, six-month calculation cycle and within that cycle.
The medical care period is given three months.

[Example] In case sick leave starts on March 1, 2008 and medical equipment is 3 months and calculation cycle is 6 months
ᄋ If you have applied for consecutive sick leave without going to work: medical flight expiry on June 1, 2008
ᄋ If sick leave and rush hours are repeated on a regular basis: The medical period expires on September 1, 2008 when the accumulated time of sick leave exceeds 90 days

extension of medical instruments
For employees with some special diseases (cancer, mental illness, and hemiplegia), it is possible to extend the medical deadline appropriately after 24 months of inactivity and ratification by the corporation and the local labor bureau. However, the company has the right not to approve the agreement, as it only stipulates "possible" on the condition of ratification by the Company and the Bureau of Labor, and is not legally enforced (in the event of "corporate occupational disease or non-commercial injury).
Notice on the Pipeline of the Medical Term Regulations, 劳部发[1995]236].

2 Method of setting the medical period in case of injury (only applicable to companies with materials in case of injury)

The city of Shanghai is employing its own "medical period" calculation method. In the case of Shanghai, it is considered unreasonable to calculate the combined service life of another company and only calculates medical instruments based on the number of years worked by this company (Rules on the Standards of Medical Devices in the event of a disease or non-commercial injury during the period of the performance of the labor contract, 15[2015]).

(3) Announcement of employee annual leave

Article 18 of the Regulations for Annual Leave clarifies that the Gregorian calendar, or 365 days, is managed as a calculator from January 1 to December 31 every year. Accordingly, the entity uniformly distributes all of its employees on an annual basis (January 1 to December 31), and the employee enters the entity during the year and leaves the entity on an annual basis commensurate with the remaining period (December 31) at the end of the year. While there are two ways to arrange annual leave, entities generally operate a mix of both:

1 The company uniformly complains. It is required to arrange unification of the two to five days in line with the time when the company's production activities such as Spring Festival are suspended, and to set a period of partial periods, such as the peak season, as the period for annual leave use period. The remaining period of use shall be approved by the department manager and used on annual leave according to personal circumstances.
2 Annual leave is granted according to personal application, without a unified In this case, we're going to have to have a staff member.
If the management of the annual use status is not strictly enforced, it is likely to face a demand for unpaid annual leave compensation at the end of the year.

Unification Announcement of Annual Holidays
A Korean factory in Qingdao used legal annual leave around the spring or summer season, or when the factory was free, by uniformly arranging several days off for all employees. However, an employee has demanded compensation for not using his annual leave when resigning. The company arranged the holiday for unification, but lost the labor case because there was no written evidence that it was arranged in the name of the annual leave.
In the event of a unified arrangement of the company, a written document can be created to indicate "No Day of Year Holiday," or "No Day of Year Holiday" on the wage statement, or an employee's signature verification can effectively prevent labor disputes.

3. Compensation without annual leave

Need to pay compensation if sorry for annual leave
Since it is the legal obligation of the company to arrange annual leave, the diarrhea employee did not apply for annual leave unless the employee submitted a written waiver.Even if it does, it should be arranged principally.
A 200 percent compensation obligation will be imposed on companies for unused annual leave. by regulation
It is 300 percent, but it includes a normal wage, which is actually 200 percent.
Meanwhile, the arrangement itself is legally invalid because the in-house rule, or the company’s claim, "because the employee has not applied, is considered automatic abandonment," is itself a violation of relevant laws.

[Basic amount of compensation for unearned annual leave]
In case of compensating for unearned annual leave, the standard of first-class calculation is not the wages of the month, but the unearned.
This is the monthly average monthly salary of 12 months, excluding overtime expenses before the annual leave compensation (performance, allowances, and other benefits).
All bonuses, etc.)

Managing the use of annual leave
The entity should manage its employees’ annual leave to be completed within the year. It is important to note that while unacquired annual leave may be carried forward to the following year with the consent of the principal, it is inevitable to compensate 200 per cent if the end of the year is not over, if the end of the year, reject the consent and demand compensation, or if you retire.
Therefore, employees with an unacquired number of days remaining must be sent a notice of employee annual leave by the end of the year or two using the Employee Annual leave Execution Plan [Sample6-3] to determine the status of their annual leave use before the end of the year, requiring completion, or withdrawal of use within the time designated by the company.

Precautions for additional compound annual leave payment
Some Korean companies follow the Korean-style system, giving them extra annual leave in addition to legal annual leave in terms of benefits. In this case, if the company manages a mix of legal and compound annual leave, a dispute over payment of compensation may arise later. The legal characteristics of both parties are completely different, and since legal annual leave is mandatory for the payment of compensation when unused, the company shall manage the legal and the benefits annual leave strictly separately.

[working-level measures]

1 Regulations permit the use of a compound annual leave after its use has been completed from the legal leave.
The vacation application form identifies whether it is a "court annual leave" or a "benefit annual leave."
Set up a separate column
2 Request confirmation and signature of cumulative continuous service life after confirming that evidence is submitted at the time of employment.
If you have any other work experience at the time of your employment, submit a social insurance payment certificate, etc
Obtain a confirmation signature on the document on your cumulative length of service.
3 Specifications for the effective clause of unused annual leave
Welfare annual leave is not legally required to pay compensation for non-use.
Set a clause in the employment rules that automatically becomes effective when not in use by the end of the year

In case annual leave is wasted early on retirement
When an employee retires, the employee shall not be entitled to a wage deduction for early use if the number of annual leave days available for the year is exhausted. For example, if an employee with a cumulative two-year service life retires after using up to five days of the annual leave of the year at the end of January, the entity cannot deduct that daily allowance for overuse of the employee’s annual leave. Therefore, it is necessary to set up and manage the usage by a certain period, such as half-yearly leave.

Response to unused annual leave upon retirement
In the event of termination or termination of a labor contract with an employee, the employee shall be required to ensure that unused annual leave remains. The calculation formula is as follows, cutting less than one day.

(Number of days remaining in Calendars × 365)휴 Number of days available for annual leave-number of days spent in the current year

[Example] If an employee with a two-year cumulative service life is terminated on March 31, the employee’s unused leave will be zero if the employee has already used one day of annual leave. (90 days ÷ 365 days) 5 5 days 1 days = 0.23 days * Cut according to decimal point law

[working-level measures]

1 Voluntary resignation person
In the event of voluntary resignation, the company notice is in principle 30 days before the resignation, and if the resignation is submitted, it will not be obtained.
at an appropriate time after the end of the annual leave.
take care of retirement
2 Termination of employment at the time of contract expiration
The employee who is due to terminate the contract shall either be required to use the annual leave by checking the number of unearned days in advance or by giving notice of the annual leave plan.
3 Dismissing the Negotiation
When negotiating, the end of labor relations is adjusted to the completion of unused annual leave use.
4 Discipline.
The company does not have an obligation to pay compensation for the annual leave because the disciplinary notice has made it impossible for the management to arrange annual leave due to the employee's negligence.

02 Kitchen public funds

In the past, state-owned companies distributed homes to employees free of charge in China However, with the implementation of the Kitchen Public Fund System in the late 1990s, the policy was changed from "real distribution" of houses to "funding support" and the Kitchen Public Interest (long-term savings) system, in which the monthly housing purchase funds were set aside at the kitchen public service center at the joint labor-management ratio, was implemented.
Kitchen public funds refer to long-term kitchen public funds, which are set aside at the same rate by businesses and employees so that employees can use them for purchasing, building, renovating, and repairing houses. Under Cabinet Ordinance No. 262, which was promulgated in 1999, the Kitchen Public Funds became a legal obligation.

1. An Overview of the Kitchen Public Expend

Supervision of the payment of kitchen public funds
Unlike social insurance under the management and supervision of the Bureau of Labor, the Kitchen Public Fund is under the control of the Kitchen Public Funds Management Center. Unlike legal social insurance, such as the old and the medical insurance, kitchen public funds are not set aside in the social unification management fund, and are only used for personal housing purposes, so the intensity of law enforcement is relatively weaker than social insurance. In addition, the Kitchen Public Loan Center also has passive supervision activities on the basis of complaint.
If a company does not pay kitchen bills, the employee's remedies are limited. Even if workers apply for arbitration due to kitchen public funds, repairs are denied, and courts do not accept them. Since the inspection team is not included in the inspection team's inspection list, it is impossible to file a complaint with the inspection team. This is because the issue of unpaid kitchen bills is not settled through lawsuits, but is considered to be an issue to be dealt with through the kitchen's public money center in charge of collecting

The Role of the Kitchen Public Deposit Center
The Kitchen Public Funds Center in each province is responsible for the management of the kitchen public funds jointly established by businesses and workers. As an employee, the only remedy is to file a complaint against the company to the management center and request supplemental payment of the kitchen public expense by submitting a labor contract payroll statement. If the Kitchen Public Deposit Center does not move, the accuser may file an administrative suit against the center.
In line with the rise in real estate prices, workers' interest in kitchen public money has increased significantly, raising complaints to the deposit center for unpaid kitchen bills, and some local kitchen public money centers have been stepping up supervision by sending companies fines, notice and reminder letters of compensation payment if complaints are filed and verified.

Meanwhile, as part of its recent "urbanization" policy, the government actively pursues "the settlement of farming and farming industries in cities."
In the meantime, the government has been strengthening its supervision of the company's payment of kitchen bills every day by day. Shanghai, Shenzhen,
Beijing and other cities have promulgated administrative rules for strengthening the management of kitchen public funds or have declared kitchen public funds.
The center has strengthened its supervision function and is actively engaged in the handling of workers' complaints.
The legal risk of unpaid kitchen bills is increasing day by day. So, still the kitchen.
For companies that do not pay public money, kitchen work even from some employees step by step.
It will be necessary to start paying gold.

2. Criteria for the payment of kitchen public funds

Subject to payment
All employees serving in a company will be targeted, and even farmers who spend money abroad will not be discriminated against under the law. However, it should be noted that, in reality, different policies are in place for farmers or for those who have an outside urban household depending on the province. For example, in the case of farmers with severe manpower fluctuations, companies should check the specific payment conditions of the local area at the kitchen public service center in their location, as Beijing and Shanghai are given the option of joining the company membership.
[Bukgyeong, Shanghai] Payment is made to the owners of the estuary and the out-of-the-box city.
Forced by the government, the company is given a choice for those in need of agriculture.

a paid-in rider
1 My monthly wage position for the previous year (total total wage / 12 including bonus, overtime, etc.)
2 Upper and lower limits on the number of days (base) paid for kitchen public funds
ᄋ Upper limit of the flag carrier: Average wage for the previous year in the city x 3 times x 12 percent
ᄋ Lower bound for flag bearer: the minimum wage for the city;
3 When to set and pay the number of new employees in the year
(a) Employees who enter their first job after graduation (no job experience)
From the second month of employment, the company pays kitchen bills and the period of payment is the total wage for the second month.
(b)Employees who have entered the company on a medium-sized loan.
Starting from the day of employment, the kitchen service fee will be paid, and the period of payment will be the total amount of wages in the month of employment.

rate of payment
Typically 5% (the lowest rate in court) to 12% (the highest rate) and the company and its employees pay at the same rate. If a high percentage of payment is reported from the beginning, all employees must sign a written agreement when the reduction adjustment is made later. Therefore, it is necessary to report to the lowest percentage of the area where the kitchen public funds are registered for the first time.

Penalty if kitchen public funds are not paid
If the company does not register the payment of the Kitchen Public Loan, the Kitchen Public Loan Center will press for implementation within the time limit and may impose a fine of 50,000 yuan from 10,000 yuan for executory. In the event that the company does not pay within the time limit or is underpaid, the Kitchen Public Loan Center shall press for due payment and may apply for compulsory execution by the People's Court in the event of non-execution.

Cautions concerning the payment of kitchen public funds
1 Company and employees maintain the same percentage of payments
The payment ratio of the company and its employees must be consistent.
For example, the difference in the rate of payment, such as 10% of employees and 12% of the company, is not recognized.
2 Differentiation payment ratio cannot be applied within the same company
The payment ratio of all employees in the same entity should be the same. For example, payment from an existing employee
The ratio will be 12 percent, and new employees cannot be 10 percent. However, the overall percentage of the workplace is
It is possible to upgrade or downgrade step by step.
3 Payment period can only be adjusted once a year
Most regions are adjusted as of July 1st (based on average wages in the previous year), and the adjustment period is adjusted.
It is valid until June 30 of the following year. Therefore, in the case of new graduates in August of the year,
By the end of June of the following year, the term of payment will be the wages for the month of employment.
4 If an employee does not sign up for a kitchen credit, he or she will sign up for a letter of approval.
Kitchen public funds are legally enforced under the State Council Ordinance, so employees are required to give up their membership.
Even if a confirmation is submitted, it will have no legal effect if an employee is turned back later. Peasant ball,
In the event that foreign expenditure holders do not wish to subscribe to the kitchen public funds on their own, it is not legally valid
In preparation for further investigation by the Center for Kitchen Public Funds, it is recommended that the following consent form be accepted.
do
If an employee requests a separate cash payment as a condition of giving up, and the employee is required to accept the payment as an entity.
In case of a situation, it is required to make up for the public kitchen bills later in the approval form, and to make up the cash.
It shall be accompanied by a provision agreeing to return the amount paid to the Company.

[Approved letter]
After careful consideration, I do not want to pay the kitchen public money. Therefore, I hope the company will not process the kitchen public money for you or deduct the kitchen public expense from your wages. I hereby pledge: I am responsible for all outstanding kitchen bills and I would like to abandon all claims to the company resulting from unpaid kitchen bills.