Whether an employer shall arrange the job duties of its employee whose medical treatment period has been expired?

According to Article 40 of the “Labor Contract Law”, an employer could unilaterally terminate the labor contract with its employee who suffers from an illness or a non-work-related injury and is unable to undertake the original job duties or other job duties arranged by the employer following completion of the medical treatment period. Literally speaking, there are two prerequisites, which are, the employee is unable to undertake the original job duties, in addition, the employee is unable to undertake the other job duties arranged by the employer.

Generally speaking, the first prerequisite refers to an employee who still needs medical treatment and cannot return to work after the expiry of medical treatment period. According to Article 7 of the “Provisions on the Medical Treatment Period for Corporate Employees Due to Illnesses or Non-Work-Related Injuries”, a labor assessment shall be conducted upon the expiry of the medical treatment period; and if the degree of disability is identified as degree one to four, the employee shall be allowed to quit the position, and rescind the labor relationship. This provision does not specify rules regarding degree five to ten, because employees with such degree of disability are able to work. Therefore, if an employee’s degree of disability is five to ten, and he could not return to work upon expiry of the medical treatment period, based on which he should be considered that he is unable to undertake the original job duties and other job duties arranged by his employer. When dealing with such situation, the employer shall notify the employee to undergo work ability appraisal and return to work timely, and retain evidence of those notifications, in addition with the evidence which could prove that the employee refuses to return to work or actually fails to return to work.

Regarding the arrangement of a new position, many HRs believe that the arrangement is a must according to the law. In fact, the purpose of this legislation is to minimize the employee’s intensity and difficulty of work in consideration of his health. In practice, the new position shall avoid positions that may trigger related illnesses again (such as an employee who has suffered from waist illness, the employer shall not arrange him to carry heavy things.), or the new position are relatively less tensed for physical and mental (such as an employee in customer complaint department could be arranged to other departments after recovering from depression.).

The most special situation is that the employee’s original job is already the easiest and simplest. How to deal with such situation?

From the perspective of legislative purpose, rearrange the employee’s position is not a mechanical requirement. However, if there is a dispute, the employee is highly likely to deny the fact that his original job was the easiest, or the court may not accept the employer’s defense that the original job was the easiest. In order to minimize such risk, it is recommended to communicate with the employee and retain relevant evidence. For example, in the case (2023) Liao 01 Min Zhong No.10875, the employee was a safety staff, which is already the least tensed and easiest position compared to other positions, in addition, upon the expiry of his medical treatment period, the employer had adjusted the job duties, by which the intensity of the job had been turned down, but the employee was still unable to do the job. The company believed that it could not find any position with less intensity and difficulty, so it terminated the labor contract. Both the first instance court and the second instance court held that the company had illegally terminated the contract. It is worth noting that in this case, the court pointed out that the company had reduced the workload, and the employee failed to prove that there was any position with less intensity and difficulty, so the company could not arrange a new position; however, the company should communicate and negotiate with the employee before it unilaterally terminated the contract, otherwise it had violated the legislative intention of the Labor Contract Law as of fully protect vulnerable groups such as sick employees.