How many days sick leave is an employee entitled to in China and how is sick leave pay calculated?
This depends on whether or not the employee’s sickness or injury is work-related.
With respect to work-related sickness or injury, the employee is generally entitled to up to 12 months’ sick leave with full pay.
For non-work-related sickness or injury, the employee is entitled to sick leave which ranges from three to 24 months depending on the employees’ period of employment. The amount of pay the employer is required to make during the non-work-related sick leave is set out in the various local rules.
Can I unilaterally terminate the employment of the employee during his/her sick leave period?
An employer is prohibited from terminating any employee on sick leave unless one of the circumstances under article 39 of the Labour Contract Law occurs (such as when the employee materially breaches the employer’s rules and regulations). Even when the term of a fixed term contract expires when the employee is on sick leave, the employer must extend the term until the employee has used up his or her statutory entitlement.
How can I prevent employees from abusing the non-work-related sick leave given that it is not difficult to obtain a medical certificate in China?
Employers should put in place an appropriate staff policy to regulate non-work-related sick leave. Subject to the specific circumstances of each company such as culture or consistency, you should consider including the following in such policy:
- To require the employee to submit medical certificates for every absence of, for example, half a day or more
- To require the employee to be diagnosed by doctors in a designated hospital at the company’s expense if the employee asks for a longer period of leave (e.g. one week)
- To provide limited fully paid non-work-related sick leave to the employees, or even provide that salary during non-work-related sick leave shall be the legal minimum amount
- To record the non-work-related sick leave properly so that once the employee has used up his entitlement the employer can terminate his employment
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