BY Lucy Lu,Li Xin and Hang Ying. King & Wood Mallesons’ Commercial & Regulatory group.

陆慧文According to the PRC labor laws, an employer is obliged to ensure employee’s right to stipulated medical treatment period if an employee is suffering from illness.  In practice, when an employee goes to the hospital and seeks professional advice from a doctor, the doctor will take account of all factors concerning illness and health risks of the employee and then issue official medical certificate, with which the employee may apply for sick leave with the employer.  Accordingly, under this general sick leave application practice, if an ill-meaning employee is well acquainted with some doctors from the hospital who provides him or her with fake or improper medical certificate, the employee may apply for sick leave with the employer, an act deemed as unreasonable application for sick leave. What measures can an employer prepare to prevent the abovementioned situations from happening? And what measures can an employer take against the employee who has already enjoyed unreasonable sick leave? Below we recommend several tricks to employers for dealing with such occasions.

Trick No. 1: Enhancing Internal Rules and Regulations

The right to rest of each employee shall be respected and protected by the PRC laws, while an employer also have the right to regulate such right with relevant application procedures. The employer may set out a chapter in internal rules and regulations dedicated to application procedures for sick leave to place certain limits to the right to rest of employees, thus enhancing daily operation and management.

The application procedures for sick leave shall be reasonable. A provision where all application for sick leave shall not be approved until agreed by the manager beforehand is not at all practical—emergencies may happen to an employee. But, if the employer provides that in case of any emergency, the employee or his/her relatives shall apply for leave to his/her manager and the human resources department in the first two working hours through email, text, etc., and provide all relevant medical certificates to the employer on the day the doctor diagnoses the conditions, it will be more reasonable and more enforceable.

Apart from the application procedures for leave, the employer can also include disciplinary action chapter for violation of application procedures in internal rules and regulations. In case an employer enjoys unreasonable sick leave, the employer can then have solid ground to impose disciplinary action against such an employee.

Trick No. 2: Requiring the Employee to Provide All Medical Certificates Related to the Sick Leave

After receiving the employee’s application for sick leave, an employer has the right to request the employee to provide all medical certificates, including without limitation to booking form, medical records, diagnoses, medical advice, examination records and payment voucher and other relevant documents that can prove the authenticity of the illness.

According to judicial experiences in most regions of China, if an employer has rules on application procedures for sick leave, the list for all supporting documents to be provided by the employee and disciplinary action for violation, when an employee fails to follow such procedural requirements, the employer has the right to reject the application. Further, in this case, if the employee does not show at work, he/she shall be deemed as absent, and then the employer has the right to impose disciplinary action against him/her, up to unilateral termination of the employment relationship in accordance with internal rules and regulations.  However, in certain regions where local government prioritizes the rights of employees, such as Jiangsu Province, local labor authority tends to treat employer’s rejection of employee’s application for sick leave unreasonable, as long as the employee can provide authentic medical certificates to prove his/her illness afterwards, even if he/she does not follow the application procedures.

Trick No. 3: Requiring the Employee to Recheck at Appointed Hospital

If the employer has reasonable doubts on the authenticity of an employee’s application for sick leave after he/she submitted relevant medical certificates and other supporting documents, for example, due to his/her former fake sick leave or unreasonable sick leave, the employer can request the employee to recheck in an appointed hospital (normally an A level tertiary referral hospital) according to the recheck requirement in internal rules and regulations. However, if there is no recheck regulation in employer’s internal rules and regulations, the employee will have the right to disobey such requirement.

Please pay attention that the recheck requirement may contain legal risks in practice, which may result in disputes. Take judicial practice in Beijing for example: local government tends to treat such recheck requirement of an employer too harsh and far beyond an employer’s reasonable legal authority.

Trick No. 4: Investigation of the Employee’s Moves during the Sick Leave

If the employer believes that an employee enjoys unreasonable sick leave, the employer may take various flexible measures to investigate the moves of the employees during the leave to check whether the employee has engaged in any self-started business or whether the employee has gone on vacation, etc. If the employer finds evidence through the investigation, it may impose disciplinary actions on the employee up to unilateral termination of the employment relationship, or persuade the employee to resign.

Trick No. 5: Report to the Hospital

As to the medical certificates provided by the employee in question, the employer may report to the hospital where the doctor who issues the certificate works.  Normally after receiving such report, the hospital will talk with the reported doctor to check the situation.  Although such reporting cannot directly prove that the doctor has issued any fake or improper medical certificate, it will push the reported doctor towards a more cautious attitude in issuing similar certificates in the future, which also in turn makes it more difficult for the employee to apply for unreasonable sick leave.

By retrospect, in the PRC law regime the purpose of the sick leave mechanism is based on understanding and protection for the diligent employees. Not every employer wants to exploit its employees to the bones. Normally an employer will show considerate respect and care for employees and grant them rights to rest and sick leave based on sound reasons. However, always imposing moral obligations on the employer is definitely not the purpose of the PRC labor laws. If an employer finds any employee who uses the sick leave mechanism for unreasonable sick leave, the employer has the right to and shall take effective measures to deal with such situations.