2026-07-22

An employee with serious illness requests to return to work. How should the employer balance the risks and compliance?

Author：Liu Chunyu

Introduction

In the practice of enterprise labor management, it is not uncommon for employees to be unable to continue performing their original jobs due to serious illnesses. How to balance the employees' health, the safety of enterprise production, and legal compliance while respecting the employees' health is a real challenge faced by enterprise managers. This article, based on a real case, analyzes the legal risks, judicial practices, and operational paths, with the aim of providing practical references for employers.

Case Background

Employee A of Company A, who works in a physically demanding position and is based in Jiangsu Province, has been with the company for 16 years. At the end of 2025, Employee A suddenly suffered from a major heart and blood vessel disease. After undergoing surgery and several months of post-operative recuperation, his physical condition has improved. Now, Employee A is about to finish his sick leave and hopes to return to his original position as soon as possible.

However, Company A judged that Employee A's physical condition had not fully recovered to the level before the surgery. They believed that he was unable to perform the physically demanding tasks of his original position. Considering safety and health risks, Company A adopted a cautious attitude towards his return to his original position.

There has been a substantive disagreement between the company and its employees regarding whether they can return to their original positions. The proper resolution of this disagreement raises several core issues: such as whether the employment contract can be unilaterally terminated during the medical leave period? Can the position be legally arranged through job transfer, physical examination, or labor capacity assessment? How should the enterprise balance legal risks and humanistic care?

Medical leave

(1) The concept of medical leave

The medical leave period refers to the duration during which an employee in an enterprise is unable to work due to illness or non-work-related injury and is entitled to rest and treatment. During this period, the employer is legally prohibited from terminating the employment contract. It is a legal "dismissal protection period". Within this period, the employer cannot unilaterally terminate the employment contract based on general dismissal clauses [1]. The core of this period is the "prohibition of dismissal" time boundary. It should be noted that if the employer unilaterally terminates the employment contract during the medical leave period, it will constitute an illegal dismissal, and is legally required to pay 2N compensation, as well as medical leave wages and medical subsidies during the medical leave period.

However, if the medical leave period has ended, the employer can, in accordance with Article 40 of the Labor Contract Law [2], pay the N+1 compensation after meeting the basic requirements and then unilaterally terminate the labor contract. Please refer to the (3) part of this section for details.

(2) Calculation of the medical leave period

According to Article 3 [3] of the "Regulations on Medical Treatment Period for Enterprise Employees with Illness or Injuries Not Due to Work", the medical treatment period for employees who are ill or injured not due to work is determined based on their actual years of service in the current position and the years of service in the current unit.

Take employee A as an example. He has worked for Company A for 16 years. The corresponding medical leave period for him should be 18 months. Currently, he has taken about 7 months of leave and it has not yet expired. Therefore, Company A cannot unilaterally terminate the labor contract; otherwise, it would constitute illegal termination and require compensation of 2N.

(3) If the medical period expires, what conditions must the enterprise meet to unilaterally terminate the employment?

Article 34 of the "Labor Contract Regulations of Jiangsu Province": If a worker is ill or injured not due to work-related reasons, and after the medical treatment period, is unable to continue performing the original job or cannot undertake any other job arranged by the employer that is suitable for them, the employer may lawfully terminate or end the labor contract and provide economic compensation. If a worker is confirmed by the labor capacity assessment committee to have lost or partially lost their ability to work, the employer shall also provide the worker with medical subsidy not less than six months' salary. For those with serious illnesses or terminal illnesses, the medical subsidy shall be increased. The increase for those with serious illnesses shall be no less than 50% of the medical subsidy, and the increase for those with terminal illnesses shall be no less than 100% of the medical subsidy.

According to the aforementioned regulations, although the employer can unilaterally terminate the labor contract after the medical period has ended in accordance with the law, before doing so, the employer must meet the following conditions and follow the prescribed procedures:

Confirm with the employees or make a judgment based on hospital certificates to determine whether the employees can continue to perform their original jobs.

2. Once it is confirmed that the employee is unable to continue with their original job, the company will provide them with alternative appropriate work.

(1) If the employer does not provide any other job positions, it cannot be concluded that the employee is unable to perform the newly assigned work. Therefore, this step must not be omitted under any circumstances.

(2) When the employer arranges new work after the medical leave period, it is necessary to ensure the rationality of the new position, including the content of the new position, the labor intensity, the salary, etc., which should be compatible with the physical condition, skill level, and doctor's advice of the employee, and the adjustment should follow the principles of rationality and necessity. The overall treatment should not be significantly lower than the original position.

(3) Where possible, the company should also offer employees multiple options for different positions.

3. After a job transfer, if the employee is still unable to perform the new position or explicitly refuses, the employer can terminate the labor contract in accordance with Article 34 of the "Regulations on Labor Contracts of Jiangsu Province", but should provide the employee with economic compensation.

(4) The economic liability that the employer shall bear when terminating the labor contract after the medical period has expired, in accordance with Article 34 of the "Regulations on Labor Contracts of Jiangsu Province"

Notify one month in advance or pay an additional month's salary [4].

2. Sick leave pay during the medical leave period or sickness relief allowance (must not be less than 80% of the local minimum wage standard [5]);

3. If an employee is determined to have lost or partially lost their ability to work, the employer shall also pay medical subsidy (not less than six months' salary of the employee; for those suffering from serious or terminal illnesses, the proportion should be increased in accordance with the law [6]).

4. Economic compensation equivalent to the average monthly salary for N months (work years * average monthly salary [7]).

Labor capacity assessment

According to Article 6 of the "Regulations on Medical Treatment Period for Enterprise Employees with Illness or Injuries Not Caused by Work" [8], if an employee is unable to return to work after the medical treatment period due to non-work-related disability or illness and still cannot resume work after treatment, a labor capacity assessment should be conducted. If the assessment results in grades one to four, the labor relationship should be terminated.

Taking the real case presented at the beginning of this article as an example, even if it is assumed that the medical period has ended, the physical condition of employee A is far from reaching the level of labor capacity assessment of grades one to four. The company cannot terminate the labor contract through the labor capacity assessment method. This approach is not feasible in this case.

The actual situations often turn out to be more complex than the legal provisions. Taking the real case mentioned at the beginning of this article as an example, although the physical condition of employee A did not reach the level of being unable to perform labor, Company A judged that employee A's physical condition had become unsuitable for the original heavy labor position, and the company also objectively could not arrange an alternative position with a salary level close to the original position. Employee A insisted on returning to the original position to work. How the company should appropriately respond becomes a test for the company's managers:

(1) Can the company avoid liability by signing an agreement?

No. If an employee dies after returning to their original position, the employer cannot avoid liability by signing an agreement in advance. Such exemption clauses are usually deemed invalid due to violation of mandatory legal provisions. When an employee dies during work, it is generally recognized as a work-related injury/ death at work. The company is required to bear one-time work-related death benefits (approximately 1.08 million yuan), funeral subsidies, and survivor's pensions, etc. The amount involved is huge. Although work injury insurance and commercial insurance usually cover most of the losses, it is still possible that due to the company's so-called management negligence (such as not providing safety measures, not providing training, not providing heat protection and cooling measures, etc.), it needs to bear part of the civil liability. In addition, the company may also face administrative investigations and even administrative penalties, family members' entanglements, adverse social impacts, and other hidden losses.

(2) Can the company solve the problem through hospital inspections?

The company can make reasonable job adjustments based on the examination results from formal medical institutions and the doctor's instructions. If the doctor's advice indicates that one cannot engage in heavy physical labor, the company can transfer the employee to a relatively easier position. Additionally, the company can set an observation period based on the actual situation and promise that once the physical examination results are completely normal in the future, the employee can return to their original position.

Reference case: (2018) Su 1191 Civil Initial Case No. 1736

The court holds that: If a worker is ill or injured not due to work-related reasons and is unable to perform the original job after the expiration of the prescribed medical period, and also cannot perform the job arranged by the employer, the employer may, with thirty days' advance notice in writing to the worker or by paying the worker one month's salary as an additional payment, terminate the labor contract and pay the worker economic compensation. After recovering from the sudden illness on September 19, 2016, Wang returned to work at Huadong Can Manufacturing Company on November 26, 2017. Due to the doctor's advice that one should not stay up late or engage in heavy physical labor, and the original position required shift work, it was reasonable for Huadong Can Manufacturing Company to adjust Wang's position to a clerical position after consulting with the employees in the original position and obtaining their unanimous consent that Wang should not work the long shift in that position. Huadong Can Manufacturing Company adjusted Wang's position to a clerical position, and Wang had objections to this. The dispute should be resolved through negotiation. However, Wang insisted on returning to work and refused to change the position, and also refused to cooperate in fulfilling the relevant obligations for returning to work. Therefore, Huadong Can Manufacturing Company's unilateral notice of Wang's suspension from work and the subsequent termination of the labor contract with Wang was not inappropriate. Regarding Wang's opinion that Huadong Can Manufacturing Company illegally notified him to suspend work and illegally terminated the labor contract, the court does not support this.

(2022) Guangdong 0115 Civil Initial Case No. 9492

The work video submitted by Sanxiong Company records that the work content of the mold supervisor was to repair the molds. The specific process was to move the molds, disassemble them, place them on the machine for grinding, and install them. Qiu confirmed the work video during the arbitration and also confirmed that the molds were steel products, and the entire weight was relatively heavy. This can prove that the work intensity of this position was high. Qiu was diagnosed with cerebral infarction (stroke), and in the early stage of the onset, he had symptoms of limb weakness. Although the limb weakness symptoms were eliminated after treatment, Qiu stated in the arbitration trial that he still needed to take medication. Compared to his pre-illness physical condition, his recovery was 70% to 80%. Sanxiong Company, based on the work intensity of the mold supervisor and Qiu's physical recovery situation, believed that Qiu was temporarily unable to perform the original position and this was reasonable. Secondly, Sanxiong Company, considering Qiu's physical health and production safety, arranged him to work as a general worker and promised to return to the original position after 3 months. Sanxiong Company's decision did not have targeting or punitive nature. Qiu's claim that Sanxiong Company illegally transferred his position lacks basis, and this claim is not accepted by this court. Again, Sanxiong Company legally transferred Qiu's position. According to the principle of salary following position, Qiu should receive the corresponding treatment in the general worker position. Qiu's request to terminate the labor contract with Sanxiong Company does not comply with the legal circumstances stipulated in Article 38 of the "Labor Contract Law" where the employer pays economic compensation to the employee. This court does not support Qiu's request.

(3) Can the company force sick employees to leave their posts and take sick leave?

The company cannot force employees to take sick leave. Forcing employees to take sick leave is considered "not providing working conditions as stipulated in the labor contract". Employees have the right to unilaterally terminate the contract in accordance with Article 38 of the Labor Contract Law and demand that the company pay compensation equivalent to N months' salary.

Reference case: (2022) Su 02 Civil Appeal No. 2850

In our opinion, employers and employees should fully fulfill their respective obligations as stipulated in the labor contract. The employee should actually perform the work as agreed in the contract, while the employer should arrange the employee's position and workplace. Providing a workplace and a work environment are both part of the labor conditions that the employer should provide. In this case, on January 15, 2021, Sanzhou Company prohibited Zhang from entering the factory to perform labor and forcibly instructed him to take a sick leave. This behavior has no legal basis or legitimate reason, and it also violates Sanzhou Company's obligation to provide labor conditions as stipulated in the labor contract, infringing upon Zhang's labor rights. This directive behavior is not legitimate. The employee was unable to communicate or negotiate with the employer, and thus could not prevent the employer's illegal act through negotiation and other means. As a result, the employee was forced to terminate the labor contract, which complies with the provisions of Article 38, Paragraph 1, Item (1) of the "Labor Contract Law of the People's Republic of China". Therefore, Sanzhou Company should pay the employee a compensation of 84,571.76 yuan.

The solution path for this case

In this case, since Employee A's medical leave period has not yet ended and his illness has not caused him to lose the ability to work, but the company, considering the protection of the employee's health, believes that if the employee returns to his original position to engage in heavy physical labor, there is a risk of injury or even death. Regarding this situation, the company lacks sufficient coercive measures and can only adopt more cautious and flexible methods to ensure the employee's health and also avoid unnecessary losses for the company. In addition to job transfer, the company should also take the following measures:

If an employee refuses to be reassigned to a new position but still requests to return to the original position, the company should conduct a written communication with the employee, fully informing them of the relevant health and safety risks, and clearly stating that it is the employee's voluntary request to return to the original position for work. It is also recommended to keep a record of the communication for future evidence. Although this does not reduce the company's legal liability, it can to some extent alleviate the moral pressure the company faces after an accident occurs.

2. Pay the work injury insurance for employees based on their actual salary.

3. Purchase the necessary commercial insurances based on the actual situation, such as accident insurance and liability insurance for safety.

Conclusion

From the perspective of cases and legal provisions, when enterprises deal with employees' illness issues, they often encounter numerous "institutional constraints", such as being unable to force employees to take sick leave, being unable to unilaterally terminate labor contracts, and having limited rights to job transfer. Therefore, in actual operations, enterprises' management strategies should rely more on prudent communication, reasonable job transfers, and compliant procedural design, in order to achieve a balance between risk control and humanistic care.

Footnote:

Article 42 of the Labor Contract Law of the People's Republic of China stipulates that if a worker falls into any of the following circumstances, the employer shall not terminate the labor contract in accordance with the provisions of Article 40 or Article 41 of this law: ... (3) Suffering from an illness or being injured due to non-work-related reasons, and within the prescribed medical treatment period;

[2]. Article 40 of the Labor Contract Law stipulates that in the following circumstances, the employer may terminate the labor contract by giving the employee a written notice thirty days in advance or by paying the employee an additional month's salary: (1) The employee is ill or injured not due to work, and after the end of the prescribed medical period, is unable to perform the original job or cannot take on any other job arranged by the employer. ……

[3]. "Regulations on Medical Treatment Period for Enterprise Employees Suffering from Illness or Non-work-related Injuries" Article 3: When an enterprise employee is ill or injured not due to work reasons and needs to stop working for medical treatment, a medical treatment period ranging from three months to twenty-four months shall be granted based on the employee's actual years of service and the years of service in the current unit: (1) For those with less than ten years of actual working experience and less than five years of service in the current unit, the medical treatment period is three months; for those with more than five years of service in the current unit, it is six months. (2) For those with more than ten years of actual working experience and less than five years of service in the current unit, the medical treatment period is six months; for those with more than five years but less than ten years of service in the current unit, it is nine months; for those with more than ten years but less than fifteen years of service in the current unit, it is twelve months; for those with more than fifteen years but less than twenty years of service in the current unit, it is eighteen months; for those with more than twenty years of service in the current unit, it is twenty-four months.

[4]. Article 40 of the Labor Contract Law stipulates that in the following circumstances, the employer may terminate the labor contract by giving the employee a thirty-day advance written notice or by paying the employee an additional month's salary: (1) The employee is ill or injured not due to work, and after the end of the prescribed medical period, is unable to perform the original job or cannot take on any other job arranged by the employer.

[5]. Article 27 of the "Regulations on Wage Payment in Jiangsu Province" stipulates that if a worker is ill or injured not due to work reasons and has ceased working during the prescribed medical treatment period, the employer shall, in accordance with the wage distribution system, as well as the terms of the labor contract, collective contract, or relevant national regulations, pay the sick leave wages or sickness relief fees to the worker. The sick leave wages and sickness relief fees shall not be lower than 80% of the local minimum wage standard. If there are other provisions by the state, those provisions shall prevail.

[6]. Article 34 of the "Labor Contract Regulations of Jiangsu Province".

[7]. Article 46 of the Labor Contract Law stipulates that if any of the following circumstances occur, the employer shall pay economic compensation to the employee:... (3) The employer terminates the labor contract in accordance with Article 40 of this law. Article 47 stipulates that economic compensation shall be paid to the employee at a rate of one month's salary for each full year of service, with the calculation based on the average monthly salary during the period of employment. For a period of employment of more than six months but less than one year, it shall be calculated as one year; for a period of employment of less than six months, it shall be calculated as half a month's salary as economic compensation. If the employee's monthly salary is higher than three times the average monthly salary of the employees in the local municipality directly under the Central Government or the district-level city as announced by the local government in the previous year, the amount of economic compensation shall be calculated at three times the average monthly salary, and the maximum period for which economic compensation is paid shall not exceed twelve years. The term "monthly salary" refers to the average monthly salary of the employee during the twelve months prior to the termination or expiration of the labor contract.

[8]. Article 6 of the "Regulations on Medical Treatment Period for Enterprise Employees with Illness or Non-work-related Injuries" stipulates that if an enterprise employee becomes disabled due to non-work-related causes and is diagnosed by a doctor or medical institution as having a disease that is difficult to treat, and after the medical treatment period ends, they are unable to perform their original job or any job assigned by the employer, the labor capacity assessment shall be conducted by the labor capacity assessment committee in accordance with the standards for assessing disability due to work-related injuries and occupational diseases. If the assessment results in grades one to four, the employee shall be relieved of their job, the labor relationship terminated, retirement or resignation procedures carried out, and retirement or resignation benefits enjoyed; if the assessment results in grades five to ten, the employment contract shall not be terminated during the medical treatment period.