Wages, Overtime and Compensation (Cont'd)

Can I unilaterally terminate the employment of the employee after the medical treatment period?

If the employee is unable to return to work after the statutory medical treatment period, the employer is entitled to either (i) maintain the employment relationship and offer the employee sick leave pay subject to the terms and conditions of any internal policy; or (ii) terminate the employment with the employee.

For (ii) above, if the employer wishes to terminate the employment with the employee under such circumstances, the work ability of the employee should first be assessed by the competent labour ability assessment committee. If the employee's work ability is assessed to be at:

  • level 1-4, the formalities for that employee's retirement or resignation (before having reached the statutory retirement age) should be implemented so that the employee can be entitled to a pension and other benefits;
  • level 5-10 (provided that the employee is unable to perform his/her original duties or the duties of another job arranged by the employer), the employer may terminate the employee's employment and pay statutory severance and medical subsidy to him or her of no less than six monthly salary payments (an additional six monthly salary payments must be paid if the employee suffers from a very serious illness, such as cancer).

How can I reduce the risk of an employee abusing sick leave entitlement?

Employers can put in place an appropriate employee policy to regulate non-work-related sick leave, which can – among other things, and subject to the particular circumstances – enable the employer to:

  • require the employee to submit a medical certificate for each absence of, for example, half a day or more;
  • require the employee to be assessed by a doctor in a designated hospital at the company's expense if the employee asks for a longer period of leave (e.g., one week);
  • provide limited fully-paid non-work-related sick leave to the employee, or even to provide that the salary paid during non-work-related sick leave is at the legal minimum amount.

In addition, it is advisable to record the non-work-related sick leave properly so that once the employee has used up his or her entitlement, the employer can exercise the right to terminate the employee's employment as permitted by law.

How many days of maternity leave is a female employee entitled to in China?

A female employee is entitled to 98 days of maternity leave in total. This includes 15 days of leave prior to the estimated date of childbirth. An additional 15 days of maternity leave is granted if the female employee experiences a difficult childbirth or gives birth to more than one child during a single period of delivery. More days of maternity leave may be provided under relevant local rules.