Answer: Occupational diseases are specific diseases that employees suffer from due to their work in employment. According to the 2018 Occupational Disease Prevention and Control Law, whether an employee’s illness is an occupational disease depends on two conditions being met at the same time: one is that the illness is caused by “occupational activities”, and the other is that the illness falls within the scope of the ¡°Classification and Catalogue of Occupational Diseases¡±.
The diagnosis and identification of occupational diseases are carried out by specialized medical institutions, and the Occupational Disease Diagnosis Certificate issued by them is the main basis for determining whether employees suffer from occupational diseases. When diagnosing and identifying occupational diseases, the medical institution shall investigate the patient’s occupational history, the history of exposure to occupational hazards, and the situation of occupational hazards in the workplace. To determine the causal link in the first condition, ¡°illness due to occupational activities¡±, the institution applies the principle of ¡°the diagnosis should confirm an occupational disease in the absence of evidence to negate the inevitable connection between occupational hazards and clinical manifestations in patient¡±. 1Article 46 of the Occupational Disease Prevention and Control Law of 2018For the second condition of occupational disease identification, please refer to What types of diseases are occupational diseases?
That is to say, if an employee suffers from a disease of the type specified in the Classification and Catalogue of Occupational Diseases that caused by other reasons, he is not deemed to contract an occupational disease. For example, an employee suffers from chemical poisoning because he does his own decoration and spray painting at home in his spare time, but the employee is only an office clerk and is not exposed to chemical hazards at work, the employee can only claim medical care leave for illness or non-work-related injury rather than paid work injury leave for occupational disease. Of course, if the employee also has a slight exposure to chemical hazards in the work environment of the employer, it is necessary to determine whether the employer should bear the liability according to the certificate of diagnosis and identification by the medical institution following the aforementioned casual-link judgement principle.
Employees who are diagnosed and identified to have contracted occupational diseases shall be entitled to work injury entitlements, including the paid work injury leave, disability treatment, etc. When an employee who has engaged in the work affected by occupational hazards intends to end their role, the employer shall not terminate the employment relationship with the employee if it has not arranged an occupational health examination for the employee. 2Article 35 of the Occupational Disease Prevention and Control Law of 2018 States that ¡°workers who have not undergone occupational health examination before leaving their roles shall not be terminated or dissolved their employment contracts.¡±It is illegal for the employer to terminate the employee’s employment relationship in violation of this regulation, and it shall bear the liability of punitive damages or reinstatement of the employment relationship. 3Hebi Huitong Construction Engineering Co., Ltd., Yao Jicheng and other civil applications for retrial of labor disputes to review the civil ruling of Henan Provincial People¡¯s High Court (2022) Yumin Shen No.1631. In the case, the court held that the employer had terminated the employment relationship by stopping paying wages and arranging work for the employee who was engaged in occupational hazards. The employer did not arrange the occupational health examination before the employee left the role, and the court found that the termination illegal and that the employer must pay punitive damages.If an employee who has engaged in occupational hazard work has not undergone off-role occupational health examination, or a suspected occupational disease employee is in the period of diagnosis and observation, or an employee has lost part or all their labor capacity due to an occupational disease, the employer must not dismiss the employee on the grounds of health or ability incompetence, major changes in objective situation or economic redundancy.4Article 42 of the Employment Contract Law.
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- 1Article 46 of the Occupational Disease Prevention and Control Law of 2018
- 2Article 35 of the Occupational Disease Prevention and Control Law of 2018 States that ¡°workers who have not undergone occupational health examination before leaving their roles shall not be terminated or dissolved their employment contracts.¡±
- 3Hebi Huitong Construction Engineering Co., Ltd., Yao Jicheng and other civil applications for retrial of labor disputes to review the civil ruling of Henan Provincial People¡¯s High Court (2022) Yumin Shen No.1631. In the case, the court held that the employer had terminated the employment relationship by stopping paying wages and arranging work for the employee who was engaged in occupational hazards. The employer did not arrange the occupational health examination before the employee left the role, and the court found that the termination illegal and that the employer must pay punitive damages.
- 4Article 42 of the Employment Contract Law.