Can you reject employee’s application for getting medical treatment abroad?

Different people have different opinions on this topic. In fact, this topic does have different answers. Let’s take a look at 2 cases firstly.

Case 1: Zhan went to a hospital on December 25, 2019, and was diagnosed with discogenic low back pain and soft tissue injury. The doctor issued a sick leave of one month. On the same day, Zhan asked his colleague to send the sick leave certificate to the company, and then flew to Canada. Due to the outbreak of COVID-19, Zhan was unable to return as scheduled. When the company doubted his trip to Canada, he defended that he went there for medical treatment. The company terminated the labor contract with the reason that Zhan cheated the company and was absent from work. During the hearing of the second instance, Zhan provided the evidence of medical treatment in Canada with notarization and authentication documents, but both the court of first instance and second instance held that the company had legally terminated the labor contract. (See (2021) Hu 01 Min Zhong No. 3292 for details).

Case 2: Yuan took sick leave for two weeks from August 1, 2016 to August 14 due to threatened premature delivery, which was approved by the company. On August 5, Yuan went to Houston, the United States, to wait for delivery. After the sick leave expired, she did not go back to work, instead she provided a certificate issued by an American doctor suggesting that she should take sick leave at home, and applied to the company for an extension of her sick leave. The company refused to accept the authenticity of the certificate, and rejected Yuan’s application, in addition, it required Yuan to come back to work. Because Yuan did not go back to work, the company terminated the labor contract with the reason that Yuan was absent for work. Yuan required the company to restoring the labor relationship, the labor arbitration committee rejected Yuan’s application, however, the court of the first instance and second instance supported Yuan’s application.

As an employer, how to deal with employee’s application for getting medical treatment abroad?

Some HR may propose to insert an article that the company would not accept any sick leave certificate issued by overseas medical institutions in the internal rules and regulations. However, for some special scenarios, it is not reasonable to insert such article, for example, during an overseas business trip, an employee accidentally falls, and must be treated in an overseas hospital, if the company rejected such sick leave, it would be unreasonable. However, in order to reduce the possibility of employees taking sick leave at random in other cities or countries, it is reasonable to stipulate that except for unavoidable reasons, employees should go to a certain level hospital with medical insurance qualification located at the cities where they work, in the internal rules and regulations.

Secondly, if an employee applies for a special trip to get medical treatment abroad, normally the company has the right to reject such application. There are two main reasons: (1) it is difficult to prove the necessity of get medical treatment abroad, because in China, there are many medical institutions with high level medical capacity, and almost all diseases could be treated in China; and (2) going abroad means that the employee must go through the hardships of travel, the rationality of such trip would be doubted. However, it should be noted that if a company has approved or has not raised any objection for an employee’s application, then if this employee asks for an extension of such sick leave, it would be very risky for the company to reject. For example, in the Case 2, the significant reason for the court to support Yuan is that she provided emails to prove that in April she had told the company about her plan to deliver baby in the United States, in addition with her plan to ask for a sick leave from August 1, both parties had discussed about the sick leave in July for many times, since Yuan had provided corresponding medical treatment records according to the requirements of the company, the court held that it is reasonable for Yuan to obtain an extension of the sick leave.

Third, if an employee applies for a sick leave when he is abroad, can you reject such application? Such situation should be decided case by case. For example, in Case 1, Zhan took advantage of the sick leave certificate issued by domestic hospital, but he had already bought a ticket to go to Canada, and flew to Canada for more than ten hours without notified the company, based on those facts, the court held that the sick leave was not necessary, and Zhan’s real reason to go abroad was for vacation. Although Zhan defended that he had been treated by traditional Chinese medical doctor in Canada, so he could not go back to work on time, the court held that such excuse was not reasonable. In view of this case, for employers, it is recommended to review the relevant sick leave documents more carefully when an employee applies for sick leave during vacation or business trip abroad. If any fraud is found or suspected, the employer could require relevant employees to provide further information, by which the employer may find out the fact and make a right decision.