Answer: Regarding the matter of medical care leave for employees with cancers or other special diseases, former Ministry of Labor¡¯s 1994 ¡°Notice on Implementing the Regulations on Medical Care Leave for Enterprise Employees with Illness or Non-work-related Injuries¡± has provided ambiguously for a 24-month medical care leave.1Original Ministry of Labor in Notice on the Implementation of ¡°Regulations on Medical Care Leave for Enterprise Employees with Illness or Non-work-related Injuries (Laobufa (1995) 236) (hereafter refers to ¡°the notice of medical care leave¡±) made further explanatory provision that ¡° for those employees suffering from special diseases (such as cancer, mental disease, and paralysis) and who cannot recover within 24 months, their medica care leave may be extended upon approval by their employer and labor administrative department.¡±
This document and provisions have led to a huge divergence in the implementation of the 1994 Regulations on Medical Care Leave for Enterprise Employees with Illness or Non-work-related Injuries in China’s judicial system on whether the accumulative service years should be taken into account to decide the 24-month medical care leave.
Henan Province, Chongqing City, Guangdong Province, Xuancheng City of Anhui Province, Wuhan City of Hubei Province and other places still strictly follow the medical care leave form, and do not recognize employees¡¯ automatic 24-month medical care leave when they suffer from a cancer or special disease, but must consider accumulative service years of employees. For example, the case of Li Siwei of Jiangmen before Guangdong Provincial High Court in 2018, the case of Jiang Meizhou before Shenzhen Intermediate Court in 2018, and the case of Zhongding Seiko Technology Company before Xuancheng Intermediate Court of Anhui Province in 2022.2In 2015, the Shanghai Municipal Government issued the Regulations on the Standard of Medical care leave for Workers Suffering from Illness or Non-work-related Injuries during the Implementation of Employment contracts (Hu Fu Fa (2015) No.40), which stipulates that ¡°the medical care leave shall be set according to the service years of the workers in the employers. If a worker is identified by the Labor Capacity Appraisal Committee as completely incapacitated but does not meet the conditions for retirement or resignation, the medical care leave shall be extended. The extended medical care leave shall be specifically agreed upon by the employer and the worker, but the total period of the extended medical care leave and the medical care leave stipulated in the preceding article shall not be less than 24 months.¡± The Notice on the Opinions on Several Issues Concerning the Implementation of the Interim Provisions on the Treatment of Sick Leave for Employees of Enterprises in Chongqing (Yu Lao Ban Fa (2000) 233) stipulates that ¡°for some employees suffering from special diseases (such as cancer, mental illness, paralysis, etc.), if they can not recover within the medical care leave they have enjoyed, appropriate extension of medical care leave shall be approved by the enterprise and the administrative departments of labor and social security in the districts and counties (cities) where they are located. In principle, the extended medical care leave shall not exceed the original medical care leave.¡± Li Siwei, Civil Ruling of Employment contract Dispute Retrial Review and Trial Supervision of Jiangmen New Hengda Economic and Trade Co., Ltd. Civil Ruling of Guangdong Provincial People¡¯s High Court (2018) Yue Min Shen No.1994, Jiang Meizhou, Civil Judgment of Second Instance of Labor Dispute of Shenzhen Shenkeda Intelligent Equipment Co., Ltd. Civil Judgment of Shenzhen Intermediate People’s Court of Guangdong Province (2018) Yue 03 Min Zhong 20373, Wang Moumou, Anhui Zhongding Precision Technology Co., Ltd. Guangde Branch Labor Dispute Civil Judgment of Second Instance Anhui Xuancheng Intermediate People’s Court Civil Judgment (2022) Wan 18 Min Zhong No.1419, Anhui Yaxia Industrial Co., Ltd., Yu Wenting and other civil judgments of the second instance of labor disputes, Anhui Xuancheng Intermediate People’s Court Civil Judgment (2022) Wan 18 Min Zhong No.2800. ¡° When read with the context of the notice, the ¡°appropriate extension of medical care leave¡± stipulated in Article 2 is a flexible provision for the maximum medical care leave of 24 months in Article 3 of the Regulations on Medical Care Leave for Enterprise Employees with Illness or Non-work-related Injuries; Moreover, ¡°appropriate extension of medical care leave¡± needs to meet the conditions of ¡°approval by enterprises and competent labor departments”, which does not mean that ¡°workers suffering from special diseases (such as cancer, mental diseases, paralysis, etc.) enjoy a 24-month medical care leave regardless of their service years and conditions.¡±
However, courts in Beijing, Shanghai, Anhui Province (Huaibei City, Chuzhou City, Huainan City, and Tongling City), Jiangsu Province (Provincial People¡¯s High Court, Nanjing City, Xuzhou City and Wuxi City), Changsha City of Hunan Province, Xinjiang (Provincial People¡¯s High Court and Urumqi City), and other places hold a completely opposite view, ruling that as long as employees suffer from a cancer or special disease, they can get 24 months of medical care leave regardless of their total length of service.3Beijing Century Yongxin Automobile Repair Co., Ltd. and other civil judgments of the second instance of labor disputes Civil Judgment of the First Intermediate People’s Court of Beijing (2021) Jing 01 Min Zhong No.8724. In this case, the employee suffered from a cancer, the employer dismissed the employee in nearly two years, and the employee sued for punitive damages. The court held that the medical care leave for cancer was 24 months; However, the wages for the medical care leave is calculated as nearly two years until the date of dismissal. Huang Huiying and Shenzhen Huaziyi Industrial Development Co., Ltd. Shanghai Branch Employment contract Dispute Appeal Case Shanghai First Intermediate People’s Court Civil Judgment (2017) Hu 01 Min Zhong No.9536, Anhui Jingxin Electronics Co., Ltd. Civil Judgment of the Intermediate People’s Court of Huaibei City, Anhui Province (2022) No.127 (Regardless of the actual service years, as long as the disease can not be cured within the prescribed medical care leave, the medical care leave can be extended, and the extended medical care leave does not exceed 24 months. It does not need to be approved by the enterprise or the competent labor department), Huainan Bole Human Resources Management Co., Ltd., Rongjun Labor Dispute Second Instance Civil Judgment Anhui Huainan Intermediate People’s Court Civil Judgment (2020) Wan 04 Min Zhong No.1400, Civil Judgment of Nanjing Liuhe Branch of the Appellant Xuzhou Enhua Unified Pharmaceutical Chain Sales Co., Ltd. and the Appellee Liu Xiaohong in the Case of Labor Dispute Civil Judgment of Nanjing Intermediate People’s Court of Jiangsu Province (2020) Su 01 Min Zhong No.6592, People’s Government of Wusong Town, Yian District, Tongling City, Civil Judgment of the Second Instance of Pengqian Labor Dispute Civil Judgment of Tongling Intermediate People’s Court of Anhui Province (2020) Wan 07 Min Zhong No.236, Civil Judgment of the Second Instance of Weimou and Chutian Science and Technology Co., Ltd. Employment contract Dispute Civil Judgement of Changsha Intermediate People’s Court of Hunan Province (2019) Xiang 01 Min Zhong 11739 No. Jiangsu Tongmao Industrial Co., Ltd. and Zhou Mou Labor Dispute Second Instance Civil Judgment Jiangsu Xuzhou Intermediate People’s Court Civil Judgment (2019) Su 03 Min Zhong No.7827, Civil Judgment of Second Instance of Employment contract Dispute between Yan Yu and Jiangsu Taikun Information Service Co., Ltd. Civil Judgment of Intermediate People’s Court of Wuxi City, Jiangsu Province (2019) Su 02 Min Zhong No.3798, He Mou, Civil Judgment (2017) Xin 01 Min Zai No.75 of Intermediate People’s Court of Urumqi, Xinjiang Uygur Autonomous Region, Li Shubao v. Huai’an Rongsheng yuantong Express Co., Ltd. Civil Judgment (2017) Su Min Zai No.315 of High Court of Jiangsu Province.
Another question is what the scope of special diseases is for the latter approach (that is, regardless of the total length of service, employees with cancer or special diseases shall get 24 months). The special diseases referred to in the 1994 notice of the former Ministry of Labor simply stipulated three situations: cancer, mental illness, or paralysis. Are there other similar diseases that can also be regarded as special diseases? According to decisions from courts around the country, there are other diseases, including secondary pneumonia, paraplegia, and even hemiplegia, that fall under the scope of special diseases.4Guizhou Jinxing Gold Mining Co., Ltd. and Zhang Xilong’s Civil Judgment of the Second Instance of Employment contract Dispute of the Intermediate People’s Court of Buyi and Miao Autonomous Prefecture in Southwest Guizhou Province (2020) No.1957. ¡°¡¡not only limited to cancer, mental disease, and paralysis, but also includes other special diseases that are difficult to recover within 24 months. Zhang Xilong’s secondary pneumonia could not be cured within 24 months and should also be included in the scope.¡± Ding Wei, Chuzhou Public Resources Trading Center Labor Dispute Second Instance Civil Judgment Chuzhou Intermediate People’s Court of Anhui Province Civil Judgment (2021) Wan 11 Min Zhong No.733 (lower limb paraplegia), Huang Mou, Civil Judgment of Second Instance of Labor Dispute of Anhui Kezheng New Materials Co., Ltd. Civil Judgment of Xuancheng Intermediate People’s Court of Anhui Province (2020) Wan 18 Min Zhong No.1302 (Hemiplegia Caused by Cerebral Hemorrhage).Employees with these disease shall be given a 24-month medical care leave.
Therefore, how long the medical care leave should be granted to an employee suffering from a cancer depends on the province or city where the company is located or where the employment is performed. If the company or the employment implementation is in the province or city where the first approach is taken, the employee can obtain a total number of days of medical care leave according to the table of medical care leave, taking into account of the employee¡¯s accumulative service years and service years for the current employer. If the company or the employment implementation is in the provinces or cities applying the second practice, the employee should be given 24 months of medical care leave directly, if the employee¡¯s disease is within the scope of special diseases or cancers. Of course, if the employer has a strong financial ability, it can also give the employee treatment beyond the legal standard to help the unfortunate employee.
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- 1Original Ministry of Labor in Notice on the Implementation of ¡°Regulations on Medical Care Leave for Enterprise Employees with Illness or Non-work-related Injuries (Laobufa (1995) 236) (hereafter refers to ¡°the notice of medical care leave¡±) made further explanatory provision that ¡° for those employees suffering from special diseases (such as cancer, mental disease, and paralysis) and who cannot recover within 24 months, their medica care leave may be extended upon approval by their employer and labor administrative department.¡±
- 2In 2015, the Shanghai Municipal Government issued the Regulations on the Standard of Medical care leave for Workers Suffering from Illness or Non-work-related Injuries during the Implementation of Employment contracts (Hu Fu Fa (2015) No.40), which stipulates that ¡°the medical care leave shall be set according to the service years of the workers in the employers. If a worker is identified by the Labor Capacity Appraisal Committee as completely incapacitated but does not meet the conditions for retirement or resignation, the medical care leave shall be extended. The extended medical care leave shall be specifically agreed upon by the employer and the worker, but the total period of the extended medical care leave and the medical care leave stipulated in the preceding article shall not be less than 24 months.¡± The Notice on the Opinions on Several Issues Concerning the Implementation of the Interim Provisions on the Treatment of Sick Leave for Employees of Enterprises in Chongqing (Yu Lao Ban Fa (2000) 233) stipulates that ¡°for some employees suffering from special diseases (such as cancer, mental illness, paralysis, etc.), if they can not recover within the medical care leave they have enjoyed, appropriate extension of medical care leave shall be approved by the enterprise and the administrative departments of labor and social security in the districts and counties (cities) where they are located. In principle, the extended medical care leave shall not exceed the original medical care leave.¡± Li Siwei, Civil Ruling of Employment contract Dispute Retrial Review and Trial Supervision of Jiangmen New Hengda Economic and Trade Co., Ltd. Civil Ruling of Guangdong Provincial People¡¯s High Court (2018) Yue Min Shen No.1994, Jiang Meizhou, Civil Judgment of Second Instance of Labor Dispute of Shenzhen Shenkeda Intelligent Equipment Co., Ltd. Civil Judgment of Shenzhen Intermediate People’s Court of Guangdong Province (2018) Yue 03 Min Zhong 20373, Wang Moumou, Anhui Zhongding Precision Technology Co., Ltd. Guangde Branch Labor Dispute Civil Judgment of Second Instance Anhui Xuancheng Intermediate People’s Court Civil Judgment (2022) Wan 18 Min Zhong No.1419, Anhui Yaxia Industrial Co., Ltd., Yu Wenting and other civil judgments of the second instance of labor disputes, Anhui Xuancheng Intermediate People’s Court Civil Judgment (2022) Wan 18 Min Zhong No.2800. ¡° When read with the context of the notice, the ¡°appropriate extension of medical care leave¡± stipulated in Article 2 is a flexible provision for the maximum medical care leave of 24 months in Article 3 of the Regulations on Medical Care Leave for Enterprise Employees with Illness or Non-work-related Injuries; Moreover, ¡°appropriate extension of medical care leave¡± needs to meet the conditions of ¡°approval by enterprises and competent labor departments”, which does not mean that ¡°workers suffering from special diseases (such as cancer, mental diseases, paralysis, etc.) enjoy a 24-month medical care leave regardless of their service years and conditions.¡±
- 3Beijing Century Yongxin Automobile Repair Co., Ltd. and other civil judgments of the second instance of labor disputes Civil Judgment of the First Intermediate People’s Court of Beijing (2021) Jing 01 Min Zhong No.8724. In this case, the employee suffered from a cancer, the employer dismissed the employee in nearly two years, and the employee sued for punitive damages. The court held that the medical care leave for cancer was 24 months; However, the wages for the medical care leave is calculated as nearly two years until the date of dismissal. Huang Huiying and Shenzhen Huaziyi Industrial Development Co., Ltd. Shanghai Branch Employment contract Dispute Appeal Case Shanghai First Intermediate People’s Court Civil Judgment (2017) Hu 01 Min Zhong No.9536, Anhui Jingxin Electronics Co., Ltd. Civil Judgment of the Intermediate People’s Court of Huaibei City, Anhui Province (2022) No.127 (Regardless of the actual service years, as long as the disease can not be cured within the prescribed medical care leave, the medical care leave can be extended, and the extended medical care leave does not exceed 24 months. It does not need to be approved by the enterprise or the competent labor department), Huainan Bole Human Resources Management Co., Ltd., Rongjun Labor Dispute Second Instance Civil Judgment Anhui Huainan Intermediate People’s Court Civil Judgment (2020) Wan 04 Min Zhong No.1400, Civil Judgment of Nanjing Liuhe Branch of the Appellant Xuzhou Enhua Unified Pharmaceutical Chain Sales Co., Ltd. and the Appellee Liu Xiaohong in the Case of Labor Dispute Civil Judgment of Nanjing Intermediate People’s Court of Jiangsu Province (2020) Su 01 Min Zhong No.6592, People’s Government of Wusong Town, Yian District, Tongling City, Civil Judgment of the Second Instance of Pengqian Labor Dispute Civil Judgment of Tongling Intermediate People’s Court of Anhui Province (2020) Wan 07 Min Zhong No.236, Civil Judgment of the Second Instance of Weimou and Chutian Science and Technology Co., Ltd. Employment contract Dispute Civil Judgement of Changsha Intermediate People’s Court of Hunan Province (2019) Xiang 01 Min Zhong 11739 No. Jiangsu Tongmao Industrial Co., Ltd. and Zhou Mou Labor Dispute Second Instance Civil Judgment Jiangsu Xuzhou Intermediate People’s Court Civil Judgment (2019) Su 03 Min Zhong No.7827, Civil Judgment of Second Instance of Employment contract Dispute between Yan Yu and Jiangsu Taikun Information Service Co., Ltd. Civil Judgment of Intermediate People’s Court of Wuxi City, Jiangsu Province (2019) Su 02 Min Zhong No.3798, He Mou, Civil Judgment (2017) Xin 01 Min Zai No.75 of Intermediate People’s Court of Urumqi, Xinjiang Uygur Autonomous Region, Li Shubao v. Huai’an Rongsheng yuantong Express Co., Ltd. Civil Judgment (2017) Su Min Zai No.315 of High Court of Jiangsu Province.
- 4Guizhou Jinxing Gold Mining Co., Ltd. and Zhang Xilong’s Civil Judgment of the Second Instance of Employment contract Dispute of the Intermediate People’s Court of Buyi and Miao Autonomous Prefecture in Southwest Guizhou Province (2020) No.1957. ¡°¡¡not only limited to cancer, mental disease, and paralysis, but also includes other special diseases that are difficult to recover within 24 months. Zhang Xilong’s secondary pneumonia could not be cured within 24 months and should also be included in the scope.¡± Ding Wei, Chuzhou Public Resources Trading Center Labor Dispute Second Instance Civil Judgment Chuzhou Intermediate People’s Court of Anhui Province Civil Judgment (2021) Wan 11 Min Zhong No.733 (lower limb paraplegia), Huang Mou, Civil Judgment of Second Instance of Labor Dispute of Anhui Kezheng New Materials Co., Ltd. Civil Judgment of Xuancheng Intermediate People’s Court of Anhui Province (2020) Wan 18 Min Zhong No.1302 (Hemiplegia Caused by Cerebral Hemorrhage).