Answer: The Employment Contract Law prohibits employers from terminating employees during their medical care leave, and also stipulates that in principle employment contracts shall be terminated when the employee reaches the retirement age. There is no legal provisions on how to deal with the special situation when the employee reaches the retirement age during their medical care leave. At present, there are few court decisions on this special situation around the county.
At present, the practice in most provincial and municipal courts in China is that when employees reach retirement age, the employment contract is terminated, and the employer no longer assumes the responsibility of the employee’s unexpired medical care leave, including the payment of wages during the medical care leave. These courts include Shenzhen Intermediate Court of Guangdong Province, Jiangsu Provincial High Court, Shanghai Second Intermediate Court, Zhuzhou Intermediate Court of Hunan Province, Liaocheng City of Shandong Province, Qingdao Intermediate Court, Fifth Intermediate Court of Chongqing City, intermediate courts of Xianyang City of Shaanxi Province, and Hanzhong Intermediate Court.1Jiang Chunhong and Changzhou Yida Garment Co., Ltd. Labor Dispute Appeal and Application for Civil Ruling Jiangsu Provincial People’s High Court Civil Ruling (2019) Su Minshen No.2670. Zhu Yinxiu, Guangzhou Wang Laoji Da Health Enterprise Development Co., Ltd. Civil Judgment of the Second Instance of Labor Dispute, Civil Judgment of Hunan Zhuzhou Intermediate People’s Court (2021) Xiang 02 Min Zhong No.612. Hu Fenglan, Shandong Shengshilong Garments Co., Ltd. Labor Dispute Civil Judgment of Second Instance Civil Judgment of Liaocheng Intermediate People’s Court of Shandong Province (2021) Lu 15 Min Zhong No.2676. Guo Qiuying, Qingdao Tianmo Yatai Auto Parts Co., Ltd. Civil Judgment of Second Instance of Labor Dispute Civil Judgment of Qingdao Intermediate People’s Court of Shandong Province (2021) Lu 02 Min Zhong No.7553. Northwest Branch of China Construction Eighth Engineering Bureau Co., Ltd., Xi’an Weiyang Security Service Co., Ltd. and other civil judgments of second instance of labor disputes Civil Judgment of Xianyang Intermediate People’s Court of Shaanxi Province (2021) Shan 04 Min Zhong No.2393. Civil Judgment of Second Instance of Labor Dispute between Mou Yilin and Jiuqi Yisu Hotel, Hantai District, Hanzhong City Civil Judgment of Intermediate People’s Court of Hanzhong City, Shaanxi Province (2023) Shan 07 Min Zhong No.253. Huang Xiaofei and Shanghai Hongkou District Quyang Community Service Management Center Labor Dispute Second Instance Civil Judgment Shanghai Second Intermediate People’s Court Civil Judgment (2018) Hu 02 Min Zhong No.7743. Wang Xuemei, Shenzhen Xinjitai Spray Pump Co., Ltd. Civil Judgment of Second Instance of Labor Dispute, Shenzhen Intermediate People’s Court of Guangdong Province, Civil Judgment (2018) Yue 03 Minzhong No.11486. Civil Judgment of the Second Instance of Labor Dispute between Chongqing Yuchun Technology Co., Ltd. and Chen Jianfen Civil Judgment of the Fifth Intermediate People’s Court of Chongqing (2019) Yu 05 Min Zhong No.598.
However, it is likely that some courts may handle differently, although we have found very few opposite cases.2Changsha Branch of Kunshan Runhua Commercial Co., Ltd. and Leftist Red Labor Dispute Civil Judgment of Second Instance Civil Judgment of Changsha Intermediate People’s Court of Hunan Province (2021) Xiang 01 Minzhong No.16254. The employees continued working for more than four years after reaching retirement age. The court held that the employee had the right to receive medical care leave entitlement and the employer could not terminate the employment. Because, at present, quite a number of courts around the county do not accept automatic termination of employment contract between two parties when the employee reaches the retirement age but does not receive the basic pension insurance, so the courts in these places will certainly consider that those employee who reaches the retirement age and is in the medical care leave should continue the medical care leave, because the employment relationship has not been terminated. See Can an employer terminate an employee who has reached retirement age?
In a word, whether the employer can terminate the contract when the employee reaches the retirement age during the medical care leave, like whether the contract can be terminated when the employee reaches the retirement age, is a complex issue due to the defects of the labor legal system and different practices in different provinces and cities. It needs to be determined according to regional regulations and courts’practice.
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Mr. Dong Wang has been in practice for over 20 years, specializing in business law, including employment law, commercial law, company law, and intellectual property law. Mr. Wang has earned respect and trust from his clients due to his professionalism, fidielty, and kindness.
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- 1Jiang Chunhong and Changzhou Yida Garment Co., Ltd. Labor Dispute Appeal and Application for Civil Ruling Jiangsu Provincial People’s High Court Civil Ruling (2019) Su Minshen No.2670. Zhu Yinxiu, Guangzhou Wang Laoji Da Health Enterprise Development Co., Ltd. Civil Judgment of the Second Instance of Labor Dispute, Civil Judgment of Hunan Zhuzhou Intermediate People’s Court (2021) Xiang 02 Min Zhong No.612. Hu Fenglan, Shandong Shengshilong Garments Co., Ltd. Labor Dispute Civil Judgment of Second Instance Civil Judgment of Liaocheng Intermediate People’s Court of Shandong Province (2021) Lu 15 Min Zhong No.2676. Guo Qiuying, Qingdao Tianmo Yatai Auto Parts Co., Ltd. Civil Judgment of Second Instance of Labor Dispute Civil Judgment of Qingdao Intermediate People’s Court of Shandong Province (2021) Lu 02 Min Zhong No.7553. Northwest Branch of China Construction Eighth Engineering Bureau Co., Ltd., Xi’an Weiyang Security Service Co., Ltd. and other civil judgments of second instance of labor disputes Civil Judgment of Xianyang Intermediate People’s Court of Shaanxi Province (2021) Shan 04 Min Zhong No.2393. Civil Judgment of Second Instance of Labor Dispute between Mou Yilin and Jiuqi Yisu Hotel, Hantai District, Hanzhong City Civil Judgment of Intermediate People’s Court of Hanzhong City, Shaanxi Province (2023) Shan 07 Min Zhong No.253. Huang Xiaofei and Shanghai Hongkou District Quyang Community Service Management Center Labor Dispute Second Instance Civil Judgment Shanghai Second Intermediate People’s Court Civil Judgment (2018) Hu 02 Min Zhong No.7743. Wang Xuemei, Shenzhen Xinjitai Spray Pump Co., Ltd. Civil Judgment of Second Instance of Labor Dispute, Shenzhen Intermediate People’s Court of Guangdong Province, Civil Judgment (2018) Yue 03 Minzhong No.11486. Civil Judgment of the Second Instance of Labor Dispute between Chongqing Yuchun Technology Co., Ltd. and Chen Jianfen Civil Judgment of the Fifth Intermediate People’s Court of Chongqing (2019) Yu 05 Min Zhong No.598.
- 2Changsha Branch of Kunshan Runhua Commercial Co., Ltd. and Leftist Red Labor Dispute Civil Judgment of Second Instance Civil Judgment of Changsha Intermediate People’s Court of Hunan Province (2021) Xiang 01 Minzhong No.16254. The employees continued working for more than four years after reaching retirement age. The court held that the employee had the right to receive medical care leave entitlement and the employer could not terminate the employment.