Answer: The nature of paid work injury leave is that employers bear the obligation of wage pay during the period while the employees stop work for treatments of their work injuries (including work-related injuries and occupational diseases). It is a special situation in practice that an employee who is entitled to a paid work injury leave does not rest but go to work. Currently, there are two ways for courts around the county to deal with this situation:
The first is that the employee cannot obtain the work injury leave pay together with the actual wages paid to the employee in the same period, and that the employer must only pay whichever is higher. 1Civil Judgment of First Instance on Labor Dispute between Weier Pump Manufacturing Co., Ltd. and Lei Tishun People’s Court of Guangde City, Anhui Province (2020) Wan 1822 Min Chu No.3597, Song Guangjun v. Qingdao Sizhou Electric Power Equipment Co., Ltd. (Original enterprise name: Alstom Sizhou Electric Power Equipment (Qingdao) Co., Ltd.) Labor Dispute Civil Ruling of Shandong Provincial People¡¯s High Court (2014) Lu Min Shen Zi No.863, Tianhong Digital Commercial Co. Liu Bao et al. Labor Dispute Civil Judgment of Second Instance Civil Judgment of Shenzhen Intermediate People’s Court of Guangdong Province (2021) Yue 03 Min Zhong 28976 No. Xiamen Kangbaifu Sports Goods Co., Ltd., Li Xiya Labor Dispute Second Instance Civil Judgment Fujian Xiamen Intermediate People’s Court Civil Judgment (2020) Min 02 Min Zhong No.2437. Civil Judgment of Second Instance of Foshan Jiayingshun Metal Co., Ltd. and District Boren Labor Dispute Civil Judgment of Foshan Intermediate People’s Court of Guangdong Province (2019) Yue 06 Min Zhong No.11820.The courts for this practice include the Shandong Provincial High Court, the Shenzhen and Foshan Intermediate Courts of Guangdong Province, the Guangde Intermediate Court of Anhui Province, and the Xiamen Intermediate Court of Fujian Province.
The second approach is that the pay for the paid work injury leave is the legal entitlement of employees suffering from work injuries, and the law does not stipulate that the employees are not entitled to the actual wages for work during the paid work injury leave. In other word, the employees are entitled to the both. The case of Taiyuan Chemical Industry Group Construction Co., Ltd. before Qingxu County Court of Shanxi Province in 2019 reflects this practice.2Qiuyedi (Xiamen) Outdoor Equipment Technology Co., Ltd. and Li Caihui’s Civil Judgment of the Second Instance of Labor Dispute, Xiamen Intermediate People’s Court of Fujian Province, Civil Judgment (2020) Min 02 Min Zhong 4701. The court held that “the wage earned is the remuneration for Li Caihui’s work done, and it does not conflict with his legally entitled work injury pay.¡± Civil Judgment of the First Instance of Labor Dispute between Taiyuan Chemical Industry Group Engineering Construction Co., Ltd. and Zhao Mou Civil Judgment of the People’s Court of Qingxu County, Shanxi Province (2019) Jin 0121 No.2177.
It is a rather obscure question whether employees are entitled to both the wages for the paid work injury leave and wages for actual work. Disappointingly, the Xiamen Intermediate Court of Fujian Province made contradictory judgments on the same issue in the case of Li Xiya in 2020 and the case of Li Caihui in 2020. We believe that this needs to be clarified by future legal amendments.
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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
- 1Civil Judgment of First Instance on Labor Dispute between Weier Pump Manufacturing Co., Ltd. and Lei Tishun People’s Court of Guangde City, Anhui Province (2020) Wan 1822 Min Chu No.3597, Song Guangjun v. Qingdao Sizhou Electric Power Equipment Co., Ltd. (Original enterprise name: Alstom Sizhou Electric Power Equipment (Qingdao) Co., Ltd.) Labor Dispute Civil Ruling of Shandong Provincial People¡¯s High Court (2014) Lu Min Shen Zi No.863, Tianhong Digital Commercial Co. Liu Bao et al. Labor Dispute Civil Judgment of Second Instance Civil Judgment of Shenzhen Intermediate People’s Court of Guangdong Province (2021) Yue 03 Min Zhong 28976 No. Xiamen Kangbaifu Sports Goods Co., Ltd., Li Xiya Labor Dispute Second Instance Civil Judgment Fujian Xiamen Intermediate People’s Court Civil Judgment (2020) Min 02 Min Zhong No.2437. Civil Judgment of Second Instance of Foshan Jiayingshun Metal Co., Ltd. and District Boren Labor Dispute Civil Judgment of Foshan Intermediate People’s Court of Guangdong Province (2019) Yue 06 Min Zhong No.11820.
- 2Qiuyedi (Xiamen) Outdoor Equipment Technology Co., Ltd. and Li Caihui’s Civil Judgment of the Second Instance of Labor Dispute, Xiamen Intermediate People’s Court of Fujian Province, Civil Judgment (2020) Min 02 Min Zhong 4701. The court held that “the wage earned is the remuneration for Li Caihui’s work done, and it does not conflict with his legally entitled work injury pay.¡± Civil Judgment of the First Instance of Labor Dispute between Taiyuan Chemical Industry Group Engineering Construction Co., Ltd. and Zhao Mou Civil Judgment of the People’s Court of Qingxu County, Shanxi Province (2019) Jin 0121 No.2177.