Can an Employer Terminate the Labor Contract if an Employee Conceals Medical Treatment History?

Mr. L joined company S in October 2012, and did not inform S of his medical treatment history. In 2016, S found L had been identified as a grade 8 labor dysfunction. S believed that L’s labor contract was concluded by use of fraudulent, so S terminated the labor contract. A dispute arised.

In practice, if an employee conceals medical treatment history, some employers would terminate the labor contract in accordance with Article 26 of the “Labor Contract Law” on the grounds that the relevant labor contract was concluded by use of fraudulent. S is one of those employers. Some other employers would terminate the labor contract in accordance with Article 3 and Article 8 of the “Labor Contract Law” on the grounds that employees have violated the principle of good faith, and failed to inform employers with basic information of themselves in direct relation to the labor contract.

From the perspective of judicial practice, regarding employees’ medical treatment history, we find the following practical rules.

(1) In principle, for the majority situations, an employer could not take medical treatment history as an employment requirement, because the applicants would argue that the employers constitute employment discrimination. In China, the employer could set such requirement when any laws or regulations have relevant articles, and normally such laws or regulations are related to special industries or positions. For example, Article 34 of the “Food Safety Law” stipulates that persons diagnosed with illnesses which may impede food safety as stipulated by the health administration department of the State Council shall not handle work which has direct contact with food that can be consumed directly. 

(2) Normally the court would not support the employer if it unilaterally dismisses the employment pursuant to Article 26 of the “Labor Contract Law”.

(3) If the employer unilaterally dismisses the employment pursuant to Article 3 and Article 8 of the “Labor Contract Law”, some courts may support the employer. For example, (2019) Su 01 Min Zhong No. 5419, and (2020) Lu 02 Min Zhong No. 10746.

In view of those practical rules, from the perspective of employers, it is recommended to take measures from the following aspects:

Firstly, refer to the special requirements related to special industries/positions; some employers could set reasonable requirements on specific positions. The employer could insert those requirements in the employment conditions, the consequences of concealing the relevant medical treatment history, and require applicants to sign the relevant statement as a written confirmation. The hiding logic of this measure is that, for special positions, if an employee has any relevant diseases, he may cause damage to himself or other people. Therefore, for those positions require heavy physical strength, the employment condition could set lumbar disc herniation, or hidden disability in limbs, as exceptions; and for those positions require employees to operate equipment with exposed running gears at high speed, then the employment condition could set epilepsy as an exception.

Secondly, it is recommended to insert some well-designed articles in the relevant documents. For example, an employer requires an employee to issue a statement, in which it states that, “I have never had any major dieases, and I have not concealed any medical treatment history. If I was found that I have lied, I could be deemed as violating the principle of good faith and the ‘Employees’ Handbook’, the company could unilaterally terminate the labor contract without paying any economic compensation.” If doing so, while there is any dispute, and the employer unilaterally terminates the labor contract based on Article 3 of the “Labor Contract Law”, then it is more possible for the court to support the employer.