When the Probation Period Encounters the Medical Treatment Period

Chen and Company A entered into a labor contract, in which the term of the contract was prescribed as 1 year, and the probation period was 1 month. During the probation period, Chen got sick, and the hospital issued a 6months sick leave. Company A dissolved the labor contract by the reason that Chen was unhealthy and did not meet the employment requirements.

Although an employer could set a requirement on physical health, once an employee could not work due to health reason, in practice, we have not searched any judgments which support the employer.

From the legislative purpose of the “Labor Law” and other relevant regulations, the Medical Treatment Period (“MTP”) is aimed to authorize employees the right to take a rest due to the reason of health. If an employer take health as one of the employment requirements, it would be lack of legal basis, and not reasonable, unless the relevant laws and regulations have stipulated special requirements on some specific positions, such as a person who is suffering from infectious diseases shall not be engaged in the food processing positions.

However, if the MTP is longer than the probation period, which might be difficult for employers to evaluate employees’ working ability in a short probation period, and this is unfair to the employer. On the other hand, if the health status of an employee is not stable, it would also influence the employment relationship. In view of this, when the probation period encounters MTP, the employers could take action as follows:
Firstly, to negotiate with the employee and terminate the labor contract. Normally, if an employer is willing to compensate the employee, the employee might agree to terminate the labor contract. The compensation could be decided by considering the salary and/or other welfare benefits during the MTP, the payment in lieu of notice and the economic compensation(0.5 month salary).

Secondly, to negotiate with the employee and suspend the labor contract. According to Article 2.1.6 and 2.1.8 of the “The Ministry of Labor’s Opinions on Certain Issues Concerning the Implementation of the Labor Law of the People’s Republic of China”, the employee who asks for long sick leave, could maintain the labor relationship, and the employer and employee could agree to change some articles of the labor contract, and could make special agreement on the issues during the absence of the employee. Some areas have set specific articles on the suspension of labor contracts. For example, Article 26 of the “Shanghai Municipal Labor Contract Regulations”. Article 23 and 24 of the “Shanxi Province Labor Contract Regulations”. If both parties agree to suspend the labor contract, then the employer could evaluate the employee after the MTP.