Answer: If an work-injured employee has not yet recovered and needs treatment after the expiration of the paid work injury leave, they need to apply for an extension of the paid work injury leave. The application for such extension shall be submitted by the employee (or the employer) to the relevant labor capacity appraisal committee, 1According to Article 6 of the Measures for the Administration of the Paid work injury leave for Injured Workers in Tianjin, if the paid work injury leave for injured workers expires and they are unable to resume their work and still need treatment, the injured workers or the employers shall submit an application for extension of the paid work injury leave to the Labor Capacity Appraisal Committee in advance, and the Labor Capacity Appraisal Committee shall decide whether or not to extend the period of the paid work injury leave for injured workers. Before the decision, workers with work-related injuries can still enjoy the treatment of paid work injury leave. Shen Zhixin, Guangzhou Taisheng Human Resource Service Co., Ltd. Civil Judgment of the Second Instance of Labor Dispute Civil Judgment of Guangzhou Intermediate People’s Court of Guangdong Province (2019) Yue 01 Min Zhong 15113 No.or by the employee to the employer according to the treatment opinions of the medical institution.2Li Yanjun and Tianshui Xinhua Printing Factory Labor Dispute Appeal Case Tianshui Intermediate People’s Court of Gansu Province Civil Judgment (2015) Tian Min San Zhong Zi No.65. ¡°According to the Regulations on Work Injury Insurance, injured workers who still need treatment after the expiration of the paid work injury leave shall continue to enjoy medical treatment for work-related injuries. In the absence of a written notice to Li Yanjun, the employer stopped Li Yanjun’s wage pay illegally, knowing that Li Yanjun was still in the medical care leave for work-related injuries, and treated him as absenteeism, which was obviously improper.¡± Article 7 of the Administrative Measures of Shandong Province for the Period of Paid work injury leave for Injured Workers: If the period of paid work injury leave for injured workers expires, the injury condition is not stable or has not recovered, and the injured workers cannot resume work and still need treatment, they shall submit a written application for extension of the period of paid work injury leave to the employer within 5 working days before the expiration of the period, and submit a leave certificate issued by the agreed medical institution.
The specific way of application depends on the local regulations of the province or city where the employee is located. The employee should mind to submit the application before the expiration of the paid work injury leave (for example, Shandong Province requires employees to submit their applications to the employer 7 days in advance, so as to reserve time for the employer to submit the application to local Labor Capacity Appraisal Committee), so as not to delay the processing. If the employer agrees to extend the paid work injury leave, the employee may continue to receive the relevant treatments. The labor capacity appraisal committee reviews whether to grant an extension of the paid work injury leave, usually based on professional opinions of medical institutions as to whether the employee’s injury or illness requires further medical treatments.
In practice, it is often the case that an original paid work injury leave has expired but the application for extension of the paid work injury leave is under review, which is prone to cause disputes during this uncertain period. The employer is not allowed to terminate the employment contract during this period, because the extension application may be approved to extend the paid work injury leave, and the situation that the employee has not recovered may also mean that the employee will be identified as disabled, leading to further entitlements related to disability under employment law.
In the current judicial practice, there are three ways to deal with the wage entitlement of employees when they are waiting for the approval of extending the paid work injury leave: the first is that the wage of employees is paid at the standard pay for paid work injury leave, held by courts in Tianjin and Shanxi Province; the second is that the standard of wage is that for medical care leave, held by Chongqing city;3Article 9 of the Measures for the Administration of the Paid work injury leave for Injured Workers in Chongqing stipulates: When the paid work injury leave expires or the paid work injury leave terminates, the labor capacity appraisal shall be carried out. During the period of labor capacity appraisal, the wages during the paid work injury leave shall be suspended, and the employer shall pay a living allowance monthly for those who cannot work, and the standard shall not be lower than the sick leave wage during medical care leave due to illness. the third is local minimum wage, held by the case of Shaanxi Provincial High Court.4Ren Xiangjian and Shaanxi Hengyuan Investment Group Zhaojialiang Coal Mine Co., Ltd. Civil Ruling on Labor Dispute Appeal and Application for Retrial Shaanxi High Court Civil Ruling (2020) Shan Min Shen No.1395. The court held that although the employee did not work during the period of work-related injury identification and labor capacity appraisal, the employee should also be paid the minimum wage.Of course, the extension of the employee’s paid work injury leave is subject to the maximum length of period of 12 or 24 months.5Labor Dispute Application Case between Jiang Zhiyong and Shenzhen Ming’an Security Service Company Civil Ruling of Guangdong Provincial People¡¯s High Court (2013) Yue Gao Fa Min Shen Zi No.1494.
From the basic principles of employment law regarding the paid work injury leave, the period during which employees wait for the extension approval of the paid work injury leave is similar to the period during which they await the labor capacity appraisal (please refer to My paid work injury leave has expired, but the application for labor capacity appraisal is being processed. How should the employer pay my wage?). Both periods exhibit similar characteristics of uncertain outcomes, and the wage treatment for employees during these two periods should be the same. Therefore, future legal revisions are needed to enhance the predictability of legal expectations.
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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.
Email: wangdong@royalaw.com
- 1According to Article 6 of the Measures for the Administration of the Paid work injury leave for Injured Workers in Tianjin, if the paid work injury leave for injured workers expires and they are unable to resume their work and still need treatment, the injured workers or the employers shall submit an application for extension of the paid work injury leave to the Labor Capacity Appraisal Committee in advance, and the Labor Capacity Appraisal Committee shall decide whether or not to extend the period of the paid work injury leave for injured workers. Before the decision, workers with work-related injuries can still enjoy the treatment of paid work injury leave. Shen Zhixin, Guangzhou Taisheng Human Resource Service Co., Ltd. Civil Judgment of the Second Instance of Labor Dispute Civil Judgment of Guangzhou Intermediate People’s Court of Guangdong Province (2019) Yue 01 Min Zhong 15113 No.
- 2Li Yanjun and Tianshui Xinhua Printing Factory Labor Dispute Appeal Case Tianshui Intermediate People’s Court of Gansu Province Civil Judgment (2015) Tian Min San Zhong Zi No.65. ¡°According to the Regulations on Work Injury Insurance, injured workers who still need treatment after the expiration of the paid work injury leave shall continue to enjoy medical treatment for work-related injuries. In the absence of a written notice to Li Yanjun, the employer stopped Li Yanjun’s wage pay illegally, knowing that Li Yanjun was still in the medical care leave for work-related injuries, and treated him as absenteeism, which was obviously improper.¡± Article 7 of the Administrative Measures of Shandong Province for the Period of Paid work injury leave for Injured Workers: If the period of paid work injury leave for injured workers expires, the injury condition is not stable or has not recovered, and the injured workers cannot resume work and still need treatment, they shall submit a written application for extension of the period of paid work injury leave to the employer within 5 working days before the expiration of the period, and submit a leave certificate issued by the agreed medical institution.
- 3Article 9 of the Measures for the Administration of the Paid work injury leave for Injured Workers in Chongqing stipulates: When the paid work injury leave expires or the paid work injury leave terminates, the labor capacity appraisal shall be carried out. During the period of labor capacity appraisal, the wages during the paid work injury leave shall be suspended, and the employer shall pay a living allowance monthly for those who cannot work, and the standard shall not be lower than the sick leave wage during medical care leave due to illness.
- 4Ren Xiangjian and Shaanxi Hengyuan Investment Group Zhaojialiang Coal Mine Co., Ltd. Civil Ruling on Labor Dispute Appeal and Application for Retrial Shaanxi High Court Civil Ruling (2020) Shan Min Shen No.1395. The court held that although the employee did not work during the period of work-related injury identification and labor capacity appraisal, the employee should also be paid the minimum wage.
- 5Labor Dispute Application Case between Jiang Zhiyong and Shenzhen Ming’an Security Service Company Civil Ruling of Guangdong Provincial People¡¯s High Court (2013) Yue Gao Fa Min Shen Zi No.1494.