Answer: Medical treatment allowance is an additional subsidy for employees who leave their roles due to illness or non-work-related injury, and the amount is not less than six months’ wages. The two preconditions for employers to pay the medical treatment allowance to employee are that the employer terminate the employee on the ground of the employee being health incompetent after expiration of the medical care leave (provided that the employee is still health incompetent after a position transfer), and that the employee’s labor capacity is identified as class 5 to10.
The basis of the specified amount of medical treatment allowance and these two premise conditions are under 1997 “Notice on Interpretation of Certain Issues of the Document (1996) No. 354 of the Ministry of Labor” and article 35 of 1995 “the Opinions on Several Issues Concerning the Implementation of the Labor Law of the People’s Republic of China” by Ministry of Labor.1Article 22 of the Notice on Several Issues Regarding the Implementation of the Labor Contract System by the Ministry of Labor (Laobufa (1996) No. 354) and the Notice from the General Office of the Ministry of Labor on the Interpretation of Issues Related to the Document Laobufa No. 1(1996) 354 (Laobanfa (1997) No.18). ¡°When an employee falls ill or is non-work-related injured, and the labor contract is terminated upon expiration, if the employee is assessed by the Labor Appraisal Committee as disability class 5-10, the employer should provide medical allowance not less than six months’ wages. Additionally, for those suffering from serious illnesses and terminal diseases, an additional medical allowance should be provided.¡± Article 35 of “the Opinions on Several Issues Concerning the Implementation of the Labor Law of the People’s Republic of China” issued in 1995. ¡°If, after the expiration of the medical care leave, the employee is unable to resume their original job or engage in alternative work arranged by the employer, the Labor Appraisal Committee shall assess the employee’s labor capacity referencing the standard for assessing disabilities caused by work-related injuries or occupational diseases¡¡for those assessed disability class 5 to 10, the employer has the right to terminate the labor contract and is required to provide the stipulated economic compensation and medical treatment allowance.¡±For employees with severe or terminal illness, some courts around the county still follow the practice of increasing the medical treatment allowance by 50% or 100% (for example, Guilin Intermediate Court of Guangxi Province and Jiangsu Province),2Deng Chaoyu, Guilin Hospital of Traditional Chinese Medicine Labor Dispute Civil Judgment of Second Instance Civil Judgment of Guilin Intermediate People’s Court of Guangxi Zhuang Autonomous Region (2021) Gui 03 Min Zhong No.2437. Article 34 of the Regulations on Employment contracts of Jiangsu Province still follows the practice of increasing the medical treatment allowance for those suffering from severe and incurable diseases by 50% and 100%.and some courts increase the medical treatment allowance by discretion.
Judicial decisions show that if an employer illegally terminates the employment contract of an employee whose labor capacity has been identified as class 5 to 10, for example, by not complying with the statutory negotiation procedure for position transfer, it shall bear the liabilities of both the medical treatment allowance and the punitive damages.3The Guangdong Provincial People’s High Court issued the second of eight typical cases of judicial protection for the disabled: a labor dispute between Yang Mou-mou and a technology company-to safeguard the employment rights and interests of disabled workers, the people’s court ruled in accordance with the law that it was illegal for employers to terminate employment relationships during the medical care leave of disabled workers. In addition to paying punitive damages to disabled workers, the employer was also ordered to pay sick leave wages during the remaining medical care leave and medical treatment allowance, so as to effectively safeguard the rights and interests of disabled workers in medical insurance and ensure the equal participation of disabled persons in social life.
For the monthly wage base in computing medical treatment allowance, at present courts around the country have two types of practices, one practice applies average normal-work-hours wage (excluding overtime wages) from the prior the 12 months, for example in Beijing and Guangzhou;4Civil Ruling on Labor Dispute Retrial Review and Trial Supervision between Han Wenjiang and Beijing Hezhong Huatai Taxi Co., Ltd. Civil Ruling of Beijing High Court (2021) Jing Min Shen No.7816. Xu Meiqin, Feng Jiancheng and Guangzhou Xianglong Real Estate Development Co., Ltd. Civil Judgment of Guangzhou Intermediate People’s Court of Guangdong Province (2012) S.Z.F.M.Y.Z.Z. No.4037.the other adopts the average monthly wages including overtime wages from the prior 12 months, which is the same as the base for calculating economic compensation, by courts in Shanghai, Chongqing, Nanjing, Jiangsu, and Guangdong courts including Guangzhou and Dongguan courts.5Labor Dispute between Peng Yongkun and Guangzhou Yuexiu Real Estate Engineering Management Co., Ltd. Guangzhou Intermediate People’s Court of Guangdong Province Civil Judgment (2017) Yue 01 Min Zhong No.6284. Labor Dispute between Jin Mou-mou and Shanghai Mou-mou Co., Ltd. Civil Judgment of Shanghai Xuhui District People’s Court (2010) Xu Min Yi (Min) Chu Zi No.3404. Civil Judgment of the First Instance of Labor Dispute between Yang Haibo and Chongqing Midea General Refrigeration Equipment Co., Ltd. Civil Judgment of the People’s Court of Nan’an District of Chongqing (2018) Yu 0108 Min Chu No.9344. Civil Judgment on the Labor Dispute between the Appellant Nanjing Handian Real Estate Development Co., Ltd. and the Appellee Chen Rui Civil Judgment of Nanjing Intermediate People’s Court of Jiangsu Province (2016) Su 01 Min Zhong No.841. Civil Judgment of Second Instance of Labor Dispute between Chen Chen and Beijing Founder Apabi Technology Co., Ltd. Civil Judgment of Beijing First Intermediate People’s Court (2022) Jing 01 Min Zhong No.4823.
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- 1Article 22 of the Notice on Several Issues Regarding the Implementation of the Labor Contract System by the Ministry of Labor (Laobufa (1996) No. 354) and the Notice from the General Office of the Ministry of Labor on the Interpretation of Issues Related to the Document Laobufa No. 1(1996) 354 (Laobanfa (1997) No.18). ¡°When an employee falls ill or is non-work-related injured, and the labor contract is terminated upon expiration, if the employee is assessed by the Labor Appraisal Committee as disability class 5-10, the employer should provide medical allowance not less than six months’ wages. Additionally, for those suffering from serious illnesses and terminal diseases, an additional medical allowance should be provided.¡± Article 35 of “the Opinions on Several Issues Concerning the Implementation of the Labor Law of the People’s Republic of China” issued in 1995. ¡°If, after the expiration of the medical care leave, the employee is unable to resume their original job or engage in alternative work arranged by the employer, the Labor Appraisal Committee shall assess the employee’s labor capacity referencing the standard for assessing disabilities caused by work-related injuries or occupational diseases¡¡for those assessed disability class 5 to 10, the employer has the right to terminate the labor contract and is required to provide the stipulated economic compensation and medical treatment allowance.¡±
- 2Deng Chaoyu, Guilin Hospital of Traditional Chinese Medicine Labor Dispute Civil Judgment of Second Instance Civil Judgment of Guilin Intermediate People’s Court of Guangxi Zhuang Autonomous Region (2021) Gui 03 Min Zhong No.2437. Article 34 of the Regulations on Employment contracts of Jiangsu Province still follows the practice of increasing the medical treatment allowance for those suffering from severe and incurable diseases by 50% and 100%.
- 3The Guangdong Provincial People’s High Court issued the second of eight typical cases of judicial protection for the disabled: a labor dispute between Yang Mou-mou and a technology company-to safeguard the employment rights and interests of disabled workers, the people’s court ruled in accordance with the law that it was illegal for employers to terminate employment relationships during the medical care leave of disabled workers. In addition to paying punitive damages to disabled workers, the employer was also ordered to pay sick leave wages during the remaining medical care leave and medical treatment allowance, so as to effectively safeguard the rights and interests of disabled workers in medical insurance and ensure the equal participation of disabled persons in social life.
- 4Civil Ruling on Labor Dispute Retrial Review and Trial Supervision between Han Wenjiang and Beijing Hezhong Huatai Taxi Co., Ltd. Civil Ruling of Beijing High Court (2021) Jing Min Shen No.7816. Xu Meiqin, Feng Jiancheng and Guangzhou Xianglong Real Estate Development Co., Ltd. Civil Judgment of Guangzhou Intermediate People’s Court of Guangdong Province (2012) S.Z.F.M.Y.Z.Z. No.4037.
- 5Labor Dispute between Peng Yongkun and Guangzhou Yuexiu Real Estate Engineering Management Co., Ltd. Guangzhou Intermediate People’s Court of Guangdong Province Civil Judgment (2017) Yue 01 Min Zhong No.6284. Labor Dispute between Jin Mou-mou and Shanghai Mou-mou Co., Ltd. Civil Judgment of Shanghai Xuhui District People’s Court (2010) Xu Min Yi (Min) Chu Zi No.3404. Civil Judgment of the First Instance of Labor Dispute between Yang Haibo and Chongqing Midea General Refrigeration Equipment Co., Ltd. Civil Judgment of the People’s Court of Nan’an District of Chongqing (2018) Yu 0108 Min Chu No.9344. Civil Judgment on the Labor Dispute between the Appellant Nanjing Handian Real Estate Development Co., Ltd. and the Appellee Chen Rui Civil Judgment of Nanjing Intermediate People’s Court of Jiangsu Province (2016) Su 01 Min Zhong No.841. Civil Judgment of Second Instance of Labor Dispute between Chen Chen and Beijing Founder Apabi Technology Co., Ltd. Civil Judgment of Beijing First Intermediate People’s Court (2022) Jing 01 Min Zhong No.4823.