Answer: The general principle of employment law is to provide protection for employees to cure their injuries as far as possible, and to set the paid work injury leave as the upper limit of the employer’s obligation for injured employees.
If an employee has not recovered after the expiration of the paid work injury leave (including the extension(s) of the paid work injury leave) for the occurrence of work-related injury or occupational disease, there will be many uncertain and complex situations in the relationship with the employer. From a practical point of view, the following situations may occur after the expiration of the paid work injury leave based on some factors, such as the employee’s own physical feelings, the treatment opinions of medical institutions, the application for extension of the paid work injury leave, and the conclusion of labor capacity appraisal:
The first situation is that the employee feels that they are not cured and are not able to work, but there is no hospital medical certificate in support or labor capacity appraisal to determine the result of disability. In this case, there is no basis for entitlements of work injury or even general illness, and the employee should return to work. The employee’s refusal to return to work may constitute a violation of the Company rules.
The second situation is that the employee already has obtained a conclusion of the labor capacity appraisal. If the conclusion has determined that the employee has a disability of certain class, the employer is obligated to deal with the situation based on disability caused by the work-related injury or occupational disease, including arranging appropriate job for the employee, or retaining the employment relationship but withdrawing the employee from the role, or terminating the employment relationship, and the employer and the Work Injury Insurance Fund shall pay the compensations stipulated by the law. Please refer to What should we do upon the completion of the labor capacity appraisal for an employee with a work-related injury or an occupational disease?
The third situation is that the employee has a medical certificate to continue treatment and has applied for an extension of paid work injury leave. While waiting for the approval of the application, the employment relationship between the two parties still exists. If the extension is approved, the employee may continue to be entitled to the paid work injury leave during the approved period; if the application is not approved, the employee may continue to use non-work-related illness or injury medical care leave based on the medical certificate. For specific handling, please refer to How do our company handle matters related to the application for extension of the paid work injury leave?
The fourth situation is that the employee has a medical certificate to continue the treatment, has not applied for an extension of paid work injury leave, but has applied for a labor capacity appraisal. Judging from judicial decisions in various places, the prevailing view is that the employers must not terminate the employees and the employees can at least receive the medical care leave entitlements for ordinary illness or non-work-related injury. 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?
Employees should communicate with the employer in good faith and provide the employers with information about their treatments and medical certificates. If an employee refuses to communicate with the company or return to work, in extreme cases, the company may have the right to terminate the employee’s employment relationship for absenteeism.1Civil Ruling of Hubei Provincial People¡¯s High Court (2021) E Min Shen No.1005. In this case, the employee did not recover after the expiration of the paid work injury leave, but he neither applied for extension nor returned to work. The court found that the employer legally terminated the employee on the ground of serious violation of company rules.On the other hand, the employer can not arbitrarily terminate the employment relationship only because the employee has not returned to work after the paid work injury leave expires. Employers should be considerate of employees’ injuries and illnesses, communicate with the employees in good faith and patiently, and remind employees to apply for labor capacity appraisal. If the employers do not consider these factors and directly terminate the employment relationships with the employees, it is likely to constitute illegal dismissals.2Li Fangping, Zhejiang Wansheng Talent Information Service Co., Ltd. Ningbo Branch Labor Dispute Second Instance Civil Judgment Zhejiang Ningbo Intermediate People’s Court Civil Judgment (2021) Zhe 02 Min Zhong No.2892. In this case, the employee¡¯s extended paid work injury leave expired, but the doctor’s advice requested continuous recuperation, and the employee still had not applied for labor capacity appraisal. The court found that the employer¡¯s direct termination of the employee was illegal.
The fifth situation is that after the expiration of the paid work injury leave, the employee does not return to work, does not apply for an extension of the paid work injury leave, and does not apply for a labor capacity appraisal. In this case, even there is a medical certificate for continuous treatment, the employer should be regarded as having exhausted the responsibility for work injuries, and can terminate the employment relationship or regard the employee as actively terminating the employment relationship.3Labor dispute between Rizhao Xincheng Construction Co., Ltd. and Li Hongquan, Civil Judgment of Rizhao Intermediate People’s Court of Shandong Province (2016) Lu 11 Min Zhong 495. ¡°After the expiration of paid work injury leave, Li Hongquan did not return to work in Xincheng Company, neither asked for leave from Xincheng Company nor applied for an extension of the paid work injury leave. He terminated the employment relationship with Xincheng Company by his actual actions.¡± Qin Zhengfa and Wenzhou Tongye Construction Engineering Co., Ltd. Civil Judgment of Intermediate People’s Court of Hefei City, Anhui Province (2015) No. 02588.
We are in the view that the prime reason for the five situations mentioned above being so complicated is that the legal rules are not clear. Article 31 of the Regulations on Work Injury Insurance, ¡°An injured worker, who still needs medical treatment after the expiration of the paid work injury leave, shall continue to be entitled to medical treatments for work injury¡±, does not foresee the possible complex situations and stipulates detailed, feasible rights and obligations of both employers and employees. In addition, the inadequate functional design of medical institutions in the management of employees’ work injuries (such as employers applying for extension of paid work injury leave and labor capacity appraisal on behalf of employees) and the inefficiency of labor capacity appraisal institutions (such as some appraisals¡¯ time is protracted) also increase the uncertainty and the likelihood of disputes between employers and employees.
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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 Ruling of Hubei Provincial People¡¯s High Court (2021) E Min Shen No.1005. In this case, the employee did not recover after the expiration of the paid work injury leave, but he neither applied for extension nor returned to work. The court found that the employer legally terminated the employee on the ground of serious violation of company rules.
- 2Li Fangping, Zhejiang Wansheng Talent Information Service Co., Ltd. Ningbo Branch Labor Dispute Second Instance Civil Judgment Zhejiang Ningbo Intermediate People’s Court Civil Judgment (2021) Zhe 02 Min Zhong No.2892. In this case, the employee¡¯s extended paid work injury leave expired, but the doctor’s advice requested continuous recuperation, and the employee still had not applied for labor capacity appraisal. The court found that the employer¡¯s direct termination of the employee was illegal.
- 3Labor dispute between Rizhao Xincheng Construction Co., Ltd. and Li Hongquan, Civil Judgment of Rizhao Intermediate People’s Court of Shandong Province (2016) Lu 11 Min Zhong 495. ¡°After the expiration of paid work injury leave, Li Hongquan did not return to work in Xincheng Company, neither asked for leave from Xincheng Company nor applied for an extension of the paid work injury leave. He terminated the employment relationship with Xincheng Company by his actual actions.¡± Qin Zhengfa and Wenzhou Tongye Construction Engineering Co., Ltd. Civil Judgment of Intermediate People’s Court of Hefei City, Anhui Province (2015) No. 02588.