Compensation for termination of the labor contract during medical treatment

It is expressly stipulated in the law that the contract cannot be terminated during the medical treatment. If the dismissal on the grounds that the unit fails the assessment is a deliberate circumvention of the law and a serious violation of the law, there is also a sentence after the unqualified training, requiring the unit to arrange another job. Compensation is based on the premise of termination of the contract, and it is related to the length of service years, so it is difficult to compare which compensation is more.

What disease? How long have you been resting?

During the period of legal medical treatment of the employee, the employer may terminate the labor contract in accordance with Article 39 of the Labor Contract Law (the employee is at fault or insufficient)) and is not required to pay economic compensation. The employer may also terminate the labor contract with the employee through consultation in accordance with Article 36 of the Labor Contract Law, and the employer shall pay the employee severance according to the number of years he has worked in the employer, including one month's salary for each full year, half a month's salary for less than half a year, and one month's salary for less than half a year.

In addition to the above two circumstances, if the employer unilaterally terminates the labor contract during the employee's lawful medical treatment period, it is illegal to submit, and the employee may request the employer to continue to perform the contract, but if the employer is not required to continue to perform the contract, the employer shall pay compensation, and the employer shall pay one month's salary for each full year of service of the previous unit, and one year's salary for less than one year, and two months' wages for each full year of service in the subsequent unit, one month's salary for less than half a year, and two months' wages for less than half a year.

Legal Analysis: Yes. During the medical treatment period, the employer cannot terminate the employment contract with the employee at will. If the employer terminates the employment relationship during the employee's medical treatment period, it shall be deemed to be an illegal termination, and the employer shall pay compensation to the employee.

Legal basis: Labor Contract Law of the People's Republic of China

Article 1 The conclusion of a labor contract shall follow the principles of legality, fairness, equality, voluntariness, consensus, and good faith. The labor contract concluded in accordance with the law is binding, and the employer and the employee shall perform the obligations stipulated in the labor contract.

Article 10 A written labor contract shall be concluded for the establishment of labor relations. If a labor relationship has been established and a written labor contract has not been concluded at the same time, the state shall conclude a written labor contract within one month from the date of employment. If the employer and the employee conclude a labor contract before employment, the employment relationship shall be established from the date of employment.

Article 36 The employer and the worker may terminate the labor contract if they reach a consensus through consultation.

The compensation for termination of the contract during the medical treatment period is as follows: one month's salary shall be paid to the employee for each full year, and if it is more than six months but less than one year, it shall be calculated as one year; If it is less than six months, the compensation shall be paid to the worker twice as much as half a month's wage.

Severance shall be paid to the worker according to the number of years of service in the employer and one month's salary for each full year. where it is more than six months but less than one year, it is calculated as one year; If it is less than six months, the worker shall be paid half a month's salary. If the monthly wage of a worker is three times higher than the average monthly wage of the employee in the previous year announced by the people of the municipality directly under the Central Government or the city divided into districts where the employer is located, the standard of economic compensation to be paid to him shall be paid in the amount of three times the average monthly salary of the employee, and the maximum period of payment of economic compensation shall not exceed 12 years.

The term "monthly wage" mentioned in this article refers to the average salary of an employee in the 12 months prior to the termination or dissolution of the labor contract.

In principle, it is not possible to cancel the contract during the medical treatment period, but only after the medical treatment period. The amount of compensation for termination of the contract at the end of the medical treatment period shall be calculated according to the number of years of service of the employee in the employer, and the economic compensation shall be paid at the rate of one month's salary for each year of service. If the average wage of the employee in the 12 months prior to the termination of the contract by the employer is lower than the local minimum wage, the amount shall be calculated according to the minimum wage standard.

If a worker is sick or injured not due to work, and is unable to perform his original job or work arranged by the employer after the prescribed medical treatment period has expired, the employer shall pay economic compensation to the employee if the labor contract is terminated. Severance compensation shall be paid to the employee according to the standard of one month's salary for every full year of the employee's service in the employer, and at the same time, if the average salary of the employee in the 12 months prior to the termination or termination of the labor contract is lower than the local minimum wage standard, the monthly wage for which the severance is paid shall be calculated according to the local minimum wage standard.

Legal basis

In accordance with the Labor Contract Law of the People's Republic of China

Article 47.

Severance shall be paid to the worker according to the number of years of service in the employer and one month's salary for each full year. If it is more than six months but less than one year, it shall be calculated as one year; If it is less than six months, the worker shall be paid half a month's salary. If the monthly wage of a worker is three times higher than the average monthly wage of the employee in the previous year announced by the people of the municipality directly under the Central Government or the city divided into districts where the employer is located, the standard of severance shall be paid to him at the rate of three times the average monthly wage of the employee, and the maximum period of payment of severance shall not exceed 12 years.

The term "monthly wage" mentioned in this article refers to the average salary of an employee in the 12 months prior to the termination or dissolution of the labor contract.

Article 87.

If an employer dissolves or terminates a labor contract in violation of the provisions of this Law, it shall pay compensation to the employee in accordance with Article 47 of this Law, which stipulates twice the standard of economic compensation set at the source.

During the medical treatment period, the employer cannot terminate the employment relationship with the employee at will. If the employer terminates the employment relationship during the period of medical treatment of the employee, it shall pay compensation to the employee.

1. The difference between the certificate of termination of the labor contract and the certificate of resignation.

There is an essential difference between the certificate of termination of the labor contract and the certificate of resignation, the termination of the labor contract is the termination of the labor contract through negotiation between the employer and the employee, while the resignation certificate is only a written proof of the termination of the labor contract relationship. The certificate of termination of the labor contract is issued by the employer in accordance with the law, and the termination of the labor contract relationship is often the result of negotiation between the two parties; The resignation certificate is a written notice of the employee's voluntary termination of the labor contract in accordance with Article 37 of the Labor Contract Law, and is initiated by the employee.

The certificate of termination of the labor contract is usually issued by the employer to the employee when the employee and the employer terminate the labor contract, and the employee has completed the resignation procedures in accordance with the law. If the employer fails to provide such a certificate, the employee may request the employer to provide such a certificate in accordance with the law; The resignation certificate is usually a notice of resignation issued to the employer 30 days in advance by the employee on his or her own initiative to terminate the labor contract.

According to Article 37 of the Labor Contract Law, an employee may terminate an employment contract by notifying the employer in writing 30 days in advance. The employee may terminate the labor contract by notifying the employer three days in advance during the probationary period.

Article 50 stipulates that the employer shall issue a certificate of dissolution or termination of the labor contract when dissolving or terminating the labor contract, and complete the formalities for the transfer of the employee's file and social insurance relationship within 15 days. The worker shall handle the handover of work in accordance with the agreement between the two parties. Where an employer shall pay economic compensation to an employee in accordance with the relevant provisions of this Law, it shall do so at the time of completion of the work handover.

The employer shall keep the text of the labor contract that has been dissolved or terminated for at least two years for future reference.

Article 89 stipulates that if an employer violates the provisions of this Law and fails to issue a written certificate of cancellation of the labor contract to the employee, the labor administrative department shall order it to make corrections; If any damage is caused to the worker, he shall be liable for compensation.

2. The role of the certificate of termination of the labor contract.

The new employer needs to have a certificate of termination of the employment contract to prove that the employment relationship with the previous employer has been terminated to avoid employment risks.

There are many proofs that can prove that you are not currently employed or have left another company. Such as participation and refund receipts, etc.

2. Evidentiary use: When the labor relationship is passively terminated with the current company, there will be reasons for termination in the certificate of termination of labor relationship, such as resignation, dismissal, contract expiration, etc., which is very important at this time. It is directly related to the rights and interests of the workers themselves.

And it may have a decisive impact on future rights protection.

According to Article 36 of the Labor Contract Law, an employer and an employee may terminate an employment contract if they reach a consensus through consultation.

During the medical treatment period, the employer shall not terminate the labor contract, and the employee shall be entitled to sick leave pay. If the labor contract is terminated within the first period, the company will illegally terminate the labor contract, and the employee shall be paid double the salary of the employee as compensation. According to Article 2 of the Provisions on the Medical Treatment Period for Sick or Non-work-related Injuries of Employees of Enterprises, the medical treatment period refers to the time limit within which an employee of an enterprise shall not terminate the labor contract due to illness or non-work-related injury, when he or she stops working, receives medical treatment, or rests.

Article 3 When an employee of an enterprise needs to stop working for medical treatment due to illness or non-work-related injury, he or she shall be given a medical treatment period of three to 24 months according to his actual working years and the number of years he has worked in the unit

1) Where the actual working experience is less than 10 years, and the working experience in the unit is less than 5 years, it is three months; Six months for more than five years.

2) Where the actual working experience is more than 10 years, the working experience in the unit is less than 5 years, and 6 months is the actual working experience; 9 months for those between five and ten years; 12 months for between 10 and 15 years; 18 months for between 15 and 20 years; 24 months for more than 20 years. Article 4 Where the medical treatment period is three months, the cumulative sick leave time within six months shall be calculated; 6 months is calculated based on the accumulated sick leave time within 12 months; Nine months shall be calculated as the accumulated sick leave time within 15 months; Ten years of old age and two months shall be calculated according to the cumulative sick leave time within 18 months; 18 months shall be calculated based on the accumulated sick leave time within 24 months; 24 months shall be calculated based on the accumulated sick leave time within 30 months. Article 5 During the period of medical treatment for employees of an enterprise, their sick leave pay, sickness relief expenses, and medical treatment shall be implemented in accordance with the relevant regulations.

Article 6 If an employee of an enterprise is disabled not due to work-related injuries and is found by a doctor or a medical institution to be suffering from an illness that is difficult to achieve, and his medical treatment is terminated during the medical treatment period, and he is unable to engage in his original job or work arranged by the employer, the labor appraisal committee shall conduct an appraisal of his or her working ability with reference to the appraisal standards for the degree of disability caused by work-related injuries and occupational diseases. Those who have been identified as level 1 to level 4 shall withdraw from their labor positions, terminate their labor relations, go through retirement and resignation procedures, and enjoy retirement and retirement benefits; If the employee is assessed as grade 5 to 10, the labor contract shall not be terminated during the medical treatment period. Article 7 If an employee of an enterprise is disabled not due to work and is found by a doctor or a medical institution to be suffering from a disease that is difficult to achieve, and the medical treatment period expires, the labor appraisal committee shall conduct an appraisal of his or her working ability with reference to the appraisal standards for the degree of disability caused by work-related injuries and occupational diseases.

Article 8 For those who have not recovered after the expiration of the medical treatment period, the issue of economic compensation for the termination of the labor contract shall be implemented in accordance with the relevant regulations.