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]).