If an employee is sick or injured not due to work, such as an employee who has a traffic accident on the weekend, suffers from illness or cancer, etc., and needs to be hospitalized, and the employee is unable to work to the company during the hospitalization, does the company need to pay wages to him or terminate the labor relationship with the employee?
A classic case
A joined Company A on February 18, 2019, and the two parties signed an employment contract until February 17, 2022. Company A fell ill in early May 2021 and was diagnosed with cancer by the hospital, and has been on sick leave since then, and Company A has paid sick leave pay to A until January 2022.
On February 18, 2022, Company A terminated the employment contract between the two parties on the grounds that the term of A's employment contract had expired. A argued that he was still in the medical treatment period and that Company A's termination of the employment relationship was unlawful. Therefore, A applied for arbitration, requesting the resumption of the employment relationship between the two parties, and the arbitration commission supported A's request. Dissatisfied, Company A filed a lawsuit with the court.
The court held that A's illness was serious and a special illness and he should be entitled to a 24-month medical treatment period, and that A's illness was still within the prescribed medical treatment period, and that the term of the employment contract should be automatically extended until the expiration of the medical treatment period. Company A notified A of the termination of the labor contract, which violated the law, so Company A was ordered to revoke the termination of the labor contract and the two parties resumed the labor relationship.
Risk Warning
Employees with cancer, mental illness and other special diseases that are difficult to improve shall enjoy a 24-month medical treatment period without being limited by the number of years of service. If the employment contract expires during the employee's medical treatment period, the employment contract shall be extended until the expiration of the medical treatment period. If the company illegally dissolves or terminates the labor contract during the medical treatment period, and the employee sues for continued performance of the labor contract, the court will make a judgment to revoke the rescission or termination decision.
Corporate Governance Advice
How can companies avoid risks when dealing with issues related to employees during the medical treatment period?We recommend:
1. The company will give the employee a medical treatment period according to the working years
When an employee needs to stop working for medical treatment due to illness or non-work-related injury, he or she will be given a medical treatment period of three months to 24 months according to his actual working years and working years in the company: that is, three months for those with less than ten years of actual working experience and three months if they have worked with the company for less than five yearsSix months for more than five years. If the actual working experience is more than 10 years, the working experience in the company is less than 5 years, and the working experience is less than 6 months;Nine months for those between five and ten years;12 months for those between 10 and 15 years;18 months for between 15 and 20 years;24 months for more than 20 years. The company shall give employees the corresponding period of medical treatment in strict accordance with this regulation.
2. The contract cannot be terminated when the contract expires during the medical treatment period
The law stipulates that when an employee is in the medical treatment period and the employment contract expires, the employment contract shall be extended until the situation disappears. So how should we understand the disappearance of the situation?In general, it refers to the expiration of the medical treatment period. However, if the employee's medical treatment is terminated during the medical treatment period, the company can terminate the employment contract on the date of medical termination without waiting for the expiration of the statutory medical treatment period. For employees who are sick but do not need to stop work and rest**, the company can terminate the employment contract as long as the contract expires.
3. The salary during the medical treatment period shall not be less than 80% of the minimum wage standard
During the employee's medical period, the company needs to pay the employee's salary to protect his or her livelihood. The law stipulates that companies can pay employees less than the local minimum wage, but not less than 80% of the minimum wage. Most of the country is carried out according to this standard. Some areas have local regulations, such as Shanghai: if the continuous service is less than 2 years, it will be paid according to 60% of the person's salary;If the employee has worked continuously for 2 years but less than 4 years, he shall be paid 70% of his salaryIf the employee has worked continuously for 4 years but less than 6 years, he shall be paid 80% of his salaryIf the employee has worked continuously for 6 years but less than 8 years, he shall be paid 90% of his salaryThose who have worked continuously for 8 years or more shall be paid 100% of their salary. [Labor Law Research 282].
**Circle of friends, so that more entrepreneurs can avoid detours!
About the Author:
Li Hui
Senior Equity Partner
Beijing Yingke (Shanghai) Law Firm.
Member of the Management Committee of Pacific Links
Member of the Yingke Business Steering Committee
Deputy Director of Legal Affairs Department of Yingke Company
Lecturer of "Legal Risk" of the Business School of Listed Companies
Expert lawyer of SME volunteer service of the Ministry of Industry and Information Technology
Intermediate M&A trader, carbon emission trader, independent director of listed companies, and secretary of the board of directors of listed companies.
Business Areas:Legal affairs such as company establishment and investment, corporate compliance system construction, equity incentives, equity structure design, mergers and acquisitions and restructuring, bankruptcy liquidation, commercial litigation and so on.
Ms. Li Hui focuses onCorporate legal counsel servicesHe has long been committed to corporate law and compliance research, and is familiar with corporate governance structure, internal operations and HR management affairs.
Served as a number of peopleEducation and training, dental care, logistics, manufacturing, media, leasing services, accommodation and catering, software and information technology, jewelry and ......Perennial legal counsel for enterprises in other industries.