The Deadline of the Suspension-of-Work-with-Pay Period

Lee was the employee of a Shanghai Company. One day, he was injured within the working hour, and was sent to the hospital immediately. 4 months later, Lee left the hospital. After another 3 months, Lee was assessed as the 10th Grade Disability. The company refused to pay the 3 months’ salary after Lee had left the hospital. Lee brought the dispute to the labor arbitration committee. Finally, the labor arbitration committee supported Lee’s claim.

According to Article 33 of the ‘Regulations on Work-Related Injury Insurances’, the suspension-of-work-with-pay period (‘SWP Period’) is a welfare benefit for the employee who has to suspend working in order to receive medical treatment for work-related accidental injury or occupational disease, during this period, the employee’s original wage and welfare benefits shall remain unchanged and payable monthly. However, the ‘Regulations on Work-Related Injury Insurances’ fails to prescribe the starting and ending date of ‘SWP Period’.

Normally, the starting date of ‘SWP Period’ would be the date when the employee suspends working. But for the ending date, there are 2 different opinions: (1) the ending date shall be the date when the disability grade of the employee is assessed. Because paragraph 2 of Article 33 has prescribed that after the disability grade of the employee is assessed, the original benefits shall be terminated, and the employee shall be entitled to obtain the disability benefits; or (2) the ending date shall be the date when the medical treatment ends. Because the precondition for ‘SWP Period’ is that the employee needs to suspend working in order to receive medical treatment, if the medical treatment ends, the ‘SWP Period’ shall be expired.

In practice, different local judiciary departments may adopt different opinions. The opinion (2) has been adopted by some provinces and cities, such as Shandong, Jiangsu, Beijing and etc.. For example, in a case of Dongying city, Shandong province, the judge states that the employee’s injury is the only criterion to define whether there shall be a ‘SWP Period’, and how long shall be the ‘SWP Period’. …… The ‘SWP Period’ shall be correspondent with the disability grade. ……The date when the disability grade of the employee is assessed shall not be the only criterion in identifying the ending date of a ‘SWP Period’. In addition, the Catalogue of the ‘SWP Period’ as the reference on guiding the determination of the ‘SWP Period’ has been released in many of those provinces and cities, such as Shandong province, Beijing, Suzhou and etc.. But there is non consistent opinion on this issue in Shanghai. For example, in the case above, the labor arbitration committee holds opinion (1). But in the case in Fengxian district, the labor arbitration committee holds opinion (2) in the ruling (Feng Lao Ren Zhong (2012) Ban No. 475), but the Shanghai First Intermediate People’s Court holds opinion (1) in the judgment ((2012)Hu Yi Zhong Min San (Min) Che No. 502) and abrogates the previous ruling. Another case in Qingpu, the labor arbitration committee holds opinion (2), but the court holds opinion (1) and abrogates the previous ruling.

Therefore, in dealing with such issues, it would be better for a company to check the normal opinion of its local judiciary departments. If the judiciary departments tend to hold opinion (1), or do not have a consistent opinion, in order to eliminate the relevant risks, we recommend the company to urge its employee to apply for the disability assessment timely, which could shorten the time between the date when the medical treatment ends and the date when the disability grade of the employee is assessed.