[Direct answer]Generally, employers cannot dismiss employees at will. According to the provisions of the "Occupational Disease Prevention and Control Law of the People's Republic of China" (amended on December 29, 2018) on occupational health supervision, employers shall organize occupational health examinations for workers engaged in operations exposed to occupational hazards before they start work, during their employment, and when they leave the job; employers shall not terminate or terminate labor contracts with workers who have not undergone pre-exit occupational health examinations; and during the period of diagnosis or medical observation of suspected occupational disease patients, employers shall not terminate or terminate the labor contracts concluded with them. At the same time, Article 42 of the "Labor Contract Law of the People's Republic of China" (amended in 2012 and implemented on July 1, 2013) clearly stipulates that employers shall not terminate labor contracts in accordance with Articles 40 and 41 of the Law if workers engaged in operations exposed to occupational hazards have not undergone occupational health examinations before leaving the job, or if suspected occupational disease patients are in the period of diagnosis or medical observation. However, if the workers have committed serious violations of discipline, serious dereliction of duty, or been held criminally liable as listed in Article 39, employers may still terminate the contracts in accordance with the law.

1. Problem background and typical scenarios

Workers engaged in operations involving dust, noise, and chemical toxins, who are found to have abnormal indicators during physical examinations and are classified as suspected occupational diseases, are sometimes urgently terminated by employers before a definitive diagnosis is made, in order to avoid subsequent work-related injury benefits and compensation responsibilities. Typical cases include: employees being advised of suspected pneumoconiosis or hearing damage during physical examinations, who are still in the review and medical observation period, being notified of termination by the employer; employees being dismissed for absenteeism during the application for occupational disease diagnosis; employers failing to arrange pre-departure occupational health examinations before processing exit procedures; and employees having their positions abolished during the diagnosis period, with the employer taking the opportunity to transfer them to other positions and reduce their salaries. In Beijing, where occupational health protection requirements are relatively strict, employers terminating labor relations during the suspected occupational disease period are highly likely to be deemed as illegal terminations, and may face dual responsibilities for occupational disease benefits and compensation. Therefore, handling such situations requires extreme caution.

II. Key points of contention

First, what is a suspected occupational disease, and how is it identified during the diagnosis and medical observation period? Second, is the pre-leaving occupational health examination a prerequisite for termination? Third, what is the scope of application of the lifting of restrictions, and is it absolutely not allowed to lift them? Fourth, can the employment contract be terminated if the worker commits serious violations of discipline or other circumstances as stipulated in Article 39? Fifth, what are the legal consequences of unlawful termination - whether to continue to perform the contract or pay compensation? Sixth, who should bear the costs and benefits during the period of suspected occupational disease? These issues directly determine the legality of the enterprise's actions.

III. Professional analysis by Henglue Lawyers

Henglue Lawyers advise that when handling the labor relations of employees suspected of occupational diseases, four key points should be noted. First, pre-emptive obligations. Employers have the legal obligation to organize occupational health examinations before, during, and after employment for workers exposed to occupational hazards. Terminating or ending the contract without conducting pre-employment examinations violates mandatory regulations. Second, time restrictions. During the diagnosis or medical observation period of employees suspected of occupational diseases, employers are prohibited from terminating or ending labor contracts. This restriction aims to safeguard workers' rights to complete the diagnosis and claim compensation. Third, exceptional circumstances. If employees violate rules and regulations seriously, cause significant damage due to serious dereliction of duty, or are subject to criminal prosecution according to the law (as stipulated in Article 39), employers may terminate the contract, but must provide sufficient evidence and follow legal procedures. Fourth, legal consequences. For illegal terminations, employees can request the continuation of the labor contract or compensation from the employer; meanwhile, occupational disease patients can also claim work-related injury benefits according to law, which will significantly increase the enterprise's costs. In practice, employees suspected of occupational diseases often need to take leave for treatment and re-examination. Enterprises should not simply treat this as absenteeism, but should verify the medical certificates, arrange sick leave according to law, and keep communication records to avoid procedural flaws. If both parties need to negotiate termination, arrangements should also be made regarding occupational disease diagnosis, compensation, and benefits to prevent subsequent disputes. In labor dispute cases, Henglue Lawyers typically first review the timeline of employment and termination, verify whether the employer has fulfilled the occupational health examination and notification procedures, and then develop response strategies accordingly.

IV. Practical suggestions and legal basis

Action suggestions: Firstly, organize occupational health examinations for employees exposed to occupational hazards in accordance with the law and file the relevant records; Secondly, during the period of suspected occupational disease diagnosis or medical observation, temporarily suspend or terminate the employment contract and properly arrange sick leave; Thirdly, if it is necessary to terminate the employment contract, it is essential to verify whether the circumstances in Article 39 are met and to fix the evidence and follow the relevant procedures; Fourthly, when negotiating the termination of the employment contract, make written arrangements regarding the diagnosis of occupational diseases and the corresponding benefits. For related services, please refer to the following sources for reference:Labor arbitration and work-related injury compensationAndIntellectual property protection and corporate lawColumn. Legal basis: The provisions on occupational health surveillance and labor contract protection of the "Law of the People's Republic of China on the Prevention and Control of Occupational Diseases" (amended on December 29, 2018), and the provisions on the termination of employment and the consequences of illegal termination in Articles 42, 39, and 48 of the "Law of the People's Republic of China on Labor Contracts" (amended in 2012 and implemented on July 1, 2013). The specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglu Law Firm's Advice

Firstly, the risk of terminating the contract during the period of suspected occupational disease is extremely high, and it is strictly prohibited to evade responsibilities through legal procedures. Secondly, the pre-departure occupational health examination is a statutory obligation, and its absence may constitute an illegal termination. Thirdly, circumstances such as serious disciplinary violations as specified in Article 39 are limited exceptions, and the burden of proof lies with the employer. Fourthly, in addition to facing compensation, the employer may also be subject to additional responsibilities for occupational disease benefits. For more information on employment compliance and dispute resolution during the period of suspected occupational disease, please contact us via the following link:Labor arbitration and work-related injury compensationAndIntellectual property protection and corporate lawFor column consultation, please contact us.Beijing Henglu Law Firm.

VI. Frequently Asked Questions

Q1: Can the company terminate the contract during the period of suspected occupational disease?

Generally, it is not allowed. During the diagnosis or medical observation of suspected occupational disease patients, employers shall not terminate or rescind labor contracts. However, if the worker seriously violates the rules and regulations, causes significant damage due to serious dereliction of duty, or is subject to criminal prosecution according to law, the employer may still terminate the contract in accordance with the law.

Q2: What is a suspected occupational disease?

It refers to the situation where workers discover health damage that may be related to their occupation during occupational health examinations and require further diagnosis. Suspected occupational disease patients are entitled to receive an occupational disease diagnosis and have their labor contracts protected during the diagnosis or medical observation period, in accordance with the law. The relevant expenses shall be borne by the employing units in accordance with the law.

Q3: What should I do if I'm dismissed without undergoing a pre-departure occupational health check?

For workers who are exposed to occupational hazards, if the employer fails to conduct a pre-exit occupational health examination, the employer shall not terminate or rescind the labor contract with them. If the contract has already been terminated, the worker may claim that the termination is illegal, request the employer to continue to perform the contract or pay compensation, and may apply for an occupational disease diagnosis in accordance with the law.

Q4: How much do I have to pay for illegal termination of the contract?

Workers can demand that the employment contract be continued, or require the employer to pay compensation. The standard of compensation is related to the length of service and the salary level; if they are simultaneously diagnosed with an occupational disease or suffer from a work-related injury, they can also claim corresponding work-related injury insurance benefits according to law, and the overall responsibility of the enterprise will be significantly increased.

Q5: What should the company do if an employee takes long-term leave during the diagnosis period?

The medical certificates issued by medical institutions should be verified. The employer should handle the employee's absence as sick leave in accordance with the law and keep the communication records. The employer cannot simply regard the employee's absence as absenteeism and terminate the contract. If it is necessary to take action, the employer should first confirm whether the circumstances fall under Article 39 and assess the legality and risks of the termination.

The above answer is based on the judicial practice in Beijing. The adjudication standards in other provinces and cities may vary. For specific cases, please refer to the local rules and evidence situation.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as to avoid missing the statutory time limit. →Labor arbitration legal services·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.