Whether 24 months medical treatment period shall be directly applied to employees suffering from special diseases?

Lee had worked for 11 years, and was diagnosed with lung cancer after he had joined the new company for less than 1 year. Lee took sick leave. The company decided that Lee’s medical treatment period (hereinafter referred to as the “Period”) should be 6 months which is calculated in accordance with his working years. However, Lee insisted that his illness was a special disease, so the Period should be 24 months. They had the disputes on the Period.

Regarding the Period for employees suffering from special diseases, the Lao Bu Fa [1995] No.236 stipulates that for employees suffering from special diseases (such as cancer, mental illness, paralysis, and etc.) who cannot be cured within 24 months, the Period could be extended to 24 months upon the approval of the employers and competent labor authorities. There are two interpretations on this article. The first interpretation is that if such employees could not be cured within 24 months, then they shall apply for approval on the extension of 24 months, which means 24 months could be applied directly. The second interpretation is that 24 months should be applied upon the approval.

In judicial practice, there is no unified opinion. Upon our research, we find there are three main opinions in dealing with such situation.

1.Some local courts tend to support that 24 months shall be directly applied. Such as Jiangsu province, Beijing, Shanghai, Hunan province and etc.. The “Meeting Minutes on Labor Arbitration Difficult Issues in Jiangsu Province” (Su Lao Zhong Committee [2007] No. 6) states that for employees suffering from special diseases (such as cancer, mental illness, paralysis, and etc.), who shall enjoy a Period no less than 24 months, regardless of their working years. In Beijing, Shanghai, and Hunan province, although there is no local judicial rule, there are many judgments which reflect the above opinion. The typical cases are (2020) Jing 01 Min Zhong No. 1912, (2016) Hu 0115 Min Chu No.36020, (2019) ) Xiang Min Shen No. 686).

2.Some local courts tend to support that 24 months could be applied upon approval. Such as Zhejiang province, Shandong province, Chongqing and etc.. The “Reply to Several Issues Concerning the Trial of Labor Dispute Cases (IV)” of Zhejiang province (Zhe Gao Fa Min Yi [2016] No.3) states that the Period shall be decided based on the employee’s actual working years and the working years in the unit, if he cannot be cured within the relevant Period, he could apply for an extension; however, it does not mean that a 24 months Period could be applied directly. Article 17 of the “Meeting Minutes on Several Issues Concerning the Trial of Labor Disputes Cases” of Shandong province states that if an employee’s Period is calculated as 24 months based on his actual working years and working years in the unit, he cannot be cured within such Period, then he could apply for an extension; however, it does not mean that a 24 months Period could be applied directly. In Chongqing, there are judgments reflect similar opinion, such as (2019) Yu 03 Min Zhong No.1934.

3. Some local courts tend to support that the Period shall only be calculated based on the employee’s actual working years and working years in the unit. The “Reply to the Issues Concerning the Medical Treatment Period” of Guangdong province ((Yue Lao She Han [2004] No. 250) states that the Period of an employee suffering from special diseases shall be calculated in accordance with Lao Bu Fa No.479, which says the period shall be calculated based on the employee’s actual working years and working years in the unit; and it does not mean that a 24 months Period could be applied directly.

In summary, it is recommended that employers shall get to know the regulations or practical rules of local judicial departments on the Period of employees suffering from special disease, based on which employers could manage such Period in a right way.