Attorney Shao Shiwei | A Comprehensive Guide to Medical Treatment Period Regulations in Shanghai (Recommended for Bookmarking)

 

 

Author of this article: Attorney Shao Shiwei

 

 

I. Concepts

 

(1) Concept of the medical treatment period: The medical treatment period refers to the period during which an employee stops working to receive medical treatment and rest due to illness or non-work-related injury, and during which the employer may not terminate the labor contract on such grounds.[1] An employee who falls ill or suffers a non-work-related injury is entitled to a medical treatment period of 3 to 24 months, depending on the employee’s total years of work experience and the number of years employed with the current employer.

period.

 

(2) Special provisions on the medical treatment period in the Shanghai region:[2]

 

 

II. Extension of the Medical Treatment Period

 

For employees suffering from certain special diseases (such as cancer, mental disorders, paralysis, etc.) who have not recovered within 24 months, the medical treatment period may be appropriately extended upon approval by the employer and the local labor administrative department.

Specific conditions for extending the medical treatment period in the Shanghai region: The employee must be appraised by the Labor Ability Appraisal Committee as having completely lost labor capacity but not meeting the conditions for retirement or withdrawal from employment. In addition, the extended medical treatment period shall be specifically agreed upon between the employer and the employee; however, the sum of the agreed extension and the medical treatment period stipulated in the preceding provision shall not be less than 24

months.[3]

Note: The above provisions mainly apply to contracts entered into after May 1, 2002. For contracts entered into before that date, Article 5, Paragraph 1 of the Notice on Several Issues Concerning the Implementation of the Shanghai Municipal Provisions on Labor Contracts shall apply.

 

 

III. How to Calculate Intermittent Medical Leave?

 

The duration of the medical treatment period may be calculated on a cumulative basis. Calculation method [4]:

Entitled to the employee Duration of the medical treatment period (in months)	Cumulative months of sick leave permissible
3 months	6 months
6 months	12 months
9 months	15 months
12 months	18 months
18 months	24 months
24 months	30 months

For example: For an employee entitled to a three-month medical treatment period, if the first sick leave begins on

For example: For an employee entitled to a three-month medical treatment period, if the first sick leave begins on March 5, 1995, the medical treatment period for such employee shall be determined as falling between March 5 and September 5. The accumulation of three months of sick leave within this period shall be deemed as the expiration of the medical treatment period. Other cases shall be handled by analogy. During the sick leave period, public holidays, weekends, and statutory holidays are included within

the period.

 

 

IV. Extension of Labor Contracts During the Medical Treatment Period

 

Where an employee is within the prescribed medical treatment period and does not fall under the circumstances specified in Items (2) (serious violation of labor discipline or the employer’s rules and regulations), (3) (serious dereliction of duty or engagement in malpractice for personal gain, causing substantial damage to the employer’s interests), or (4) (being held criminally liable in accordance with the law) of Article 33 of these Regulations,

the term of the labor contract shall be extended until the relevant circumstances cease to exist[5].

 

 

V. Handling of Labor Relations Upon Expiration of the Medical Treatment Period

 

(1) Medical treatment period calculated on a continuous basis

Pursuant to Article 40 of the Labor Contract Law, where an employee is unable to engage in their original work or in other work arranged by the employer after the expiration of the prescribed medical treatment period due to illness or non-work-related injury, the employer may terminate the labor contract by providing thirty days’ prior written notice to the employee or by paying the employee an additional one month’s wages

thereafter.

 

In accordance with relevant provisions, a distinction shall be made depending on whether the conclusion of medical treatment occurs within the medical treatment period or upon its expiration:

 

Wheremedical treatment concludes within the medical treatment periodand the employee is unable to engage in their original work or in other work arranged by the employer, the Labor Capacity Appraisal Committee shall conduct an appraisal of labor capacity by reference to the standards for appraising the degree of disability caused by work-related injuries and occupational diseases.

If the employee is appraised as having Grade 1 to Grade 4 disability, they shall withdraw from their work position, the labor relationship shall be terminated, procedures for retirement or withdrawal from employment shall be completed, and they shall enjoy retirement or withdrawal benefits;

If the employee is appraised as having Grade 5 to Grade 10 disability, the labor contract shall not be terminated during the medical treatment period (Article 6 of the Provisions on the Medical Treatment Period for Enterprise Employees Suffering from Illness or Non-Work-Related Injuries);

 

Upon expiration of the medical treatment period (if the employee has not yet recovered), the Labor Capacity Appraisal Committee shall conduct an appraisal of labor capacity in accordance with the Standards for Appraising the Degree of Loss of Labor Capacity Due to Non-Work-Related Injury or Illness (Trial).

If the employee is appraised as having Grade 1 to Grade 4 disability, they shall withdraw from their work position, the labor relationship shall be terminated, procedures for retirement or withdrawal from employment shall be completed, and they shall enjoy retirement or withdrawal benefits;

If the employee is appraised as having Grade 5 to Grade 10 disability, the labor contract may be terminated in accordance with law, and the employee shall be entitled to economic compensation and medical assistance benefits. The employer shall pay medical assistance fees amounting to no less than six months’ wages [6];

Where an employee is unable to return to work due to illness or non-work-related injury after the expiration of the statutorily prescribed medical treatment period, the employer may terminate the labor contract in accordance with the provisions applicable to cases exceeding the medical leave period [7].

 

(2) Cumulatively Calculated Medical Treatment Period

During the employee’s tenure with the current employerCumulativeIf the cumulative duration of sick leave exceeds the medical treatment period to which the employee is entitled under applicable regulations, the employer may lawfully terminate the labor contract with the employee [8].

 

 

VI. Payment of Wages During the Medical Treatment Period

 

(1) For continuous sick leave due to illness or non-work-related injury lasting no more than six months, enterprises shall pay sickness leave wages in accordance with the following standards:Sickness Leave Wages：

• For employees with less than two years of continuous service, 60% of the employee’s own wage;

• For employees with at least two years but less than four years of continuous service, 70% of the employee’s own wage;

• For employees with at least four years but less than six years of continuous service, 80% of the employee’s own wage;

• For employees with at least six years but less than eight years of continuous service, 90% of the employee’s own wage;

• For employees with eight or more years of continuous service, the allowance shall be calculated at 100% of the employee’s own wage.

(2) Where an employee’s continuous leave due to illness or non-work-related injury exceeds six months, the enterprise shall payillness relief allowances：

• For employees with less than one year of continuous service, the allowance shall be calculated at 40% of the employee’s own wage;

• For employees with one year or more but less than three years of continuous service, the allowance shall be calculated at 50% of the employee’s own wage;

• For employees with three or more years of continuous service, the allowance shall be calculated at 60% of the employee’s own wage.

 

In accordance with the minimum standards for sick-leave wages for enterprise employees published by the Shanghai Municipal Bureau of Labor and Social Security, the sick-leave wages or illness relief allowances paid by an enterprise to an employee during a period of illness-related leave shall not be lower than 80% of the local minimum wage standard for enterprise employees in the current year.

 

 

VII. Other Issues:

 

Is there a medical treatment period during the probationary period?

As the Labor Law stipulates that the probationary period shall not exceed six months, employees during the probationary period are entitled to a medical treatment period of no more than three months.

 

 

 

 

[1] Article 1 of the Notice on Implementing the Provisions on the Medical Treatment Period for Enterprise Employees Suffering from Illness or Non-Work-Related Injuries

[2] The Notice on Implementing the Provisions on the Medical Treatment Period for Enterprise Employees Suffering from Illness or Non-Work-Related Injuries states: “In implementing the Provisions on the Medical Treatment Period, each province, autonomous region, and municipality directly under the Central Government may, based on local actual conditions, promptly formulate specific detailed rules and report them to our Ministry for record-filing in a timely manner.”

[3] Article 3 of the Provisions on the Standards for the Medical Treatment Period for Employees in This Municipality Who Fall Ill or Suffer Non-Work-Related Injuries During the Performance of Their Labor Contracts

[4] Article 4 of the Provisions on the Medical Treatment Period for Enterprise Employees Who Fall Ill or Suffer Non-Work-Related Injuries, issued by the Ministry of Labor

[5] Article 39 of the Shanghai Municipal Regulations on Labor Contracts

[6] (Article 7 of the Provisions on the Medical Treatment Period for Enterprise Employees Who Fall Ill or Suffer Non-Work-Related Injuries; Article 22 of the Notice on Several Issues Concerning the Implementation of the Labor Contract System; Article 2 of the Notice on the Interpretation of Certain Issues Related to Document No. 354 [1996] Issued by the Ministry of Labor)

[7] Article 16 of the Notice of the Shanghai Municipal Bureau of Labor and Social Security on Several Issues Concerning the Implementation of the Shanghai Municipal Regulations on Labor Contracts

[8] Article 5 of the Provisions on the Standards for the Medical Treatment Period for Employees in This Municipality Who Fall Ill or Suffer Non-Work-Related Injuries During the Performance of Their Labor Contracts (2015 Revision)