[Direct answer]In principle, this is not allowed, but there are exceptions. Article 42 of the Labor Contract Law of the People's Republic of China (amended in 2012) clearly stipulates this. That is, during the medical treatment period, the employer may not terminate the contract on the grounds of the employee being unqualified for the job, changes in objective circumstances, or economic layoffs. However, if the employee violates the rules and regulations seriously, commits serious dereliction of duty, or is subject to criminal prosecution according to the law as stipulated in Article 39, the employer may still terminate the contract according to law. After the expiration of the medical treatment period, if the employee cannot perform the original job or the job arranged by the employer, the employer may terminate the contract according to law, but shall give written notice 30 days in advance or pay an additional month's salary, and pay economic compensation; if the employee meets the requirements, the employer shall also pay medical assistance fees.

I. Problem Background and Typical Scenarios

Being dismissed during sick leave is a common type of labor dispute. Common situations include: the employer requiring resignation on the grounds of long-term absenteeism and impact on work; directly terminating the contract after refusing a job transfer; treating the employee as absent without notice during the medical leave period; and pressuring the employee to sign a resignation agreement under the guise of voluntary termination. When handling such cases in Beijing, the court first confirms whether the medical leave period has expired, and then reviews whether the grounds and procedures for termination are legal. In addition, such issues often involve multiple parties and legal relationships. Clarifying the positions, responsibilities, and applicable rules of all parties is a prerequisite for resolving the dispute. The more complete the materials and clearer the timeline, the greater the initiative the parties can grasp in subsequent negotiations and litigation. When analyzing the case, it is recommended to take the timeline as the main line, and to match the contract, certificates, communication records, and relevant legal basis one by one, forming a clear processing framework to facilitate the determination of the priority and feasibility of various claims.

II. Key points of contention

First, the calculation of the medical leave period and whether it has expired. Second, whether the termination is based on Article 39, Article 40, or Article 41. Third, whether the employer has fulfilled the procedures of advance notice, informing the trade union, and consultation. Fourth, whether appropriate work has been arranged after the medical leave period ends. Fifth, the compensation standard for unlawful termination and the claim for medical subsidies. Sixth, whether the order of rights claims and the pre-procedures have been satisfied. Seventh, whether the authenticity, legality, and relevance of the evidence can withstand scrutiny. Eighth, how to balance the interests of third parties and the public interest. Ninth, the trade-offs between efficiency and outcomes between settlement, mediation, and adjudication. In addition, attention should also be paid to whether the form of evidence is legal, whether key facts can corroborate each other, and the differences in cost, time, and feasibility of different processing options. On this basis, the priority path to be pursued can be determined.

III. Professional analysis by Henglue Lawyers

The practical experience of Henglue Lawyers is that such cases revolve around two key words: "period" and "basis". On the issue of period, the employer should first calculate the medical leave period to which the employee is entitled by law. During the medical leave period, the employer may not terminate the employment contract or lay off the employee on the grounds of no-fault dismissal or layoffs. On the issue of basis, the termination may only be legal if the employee has committed serious violations of discipline or other statutory circumstances, and the employer shall bear the burden of proof. After the medical leave period expires, the law requires the employer to first arrange appropriate work for the employee. Only when the employee cannot perform the original work or the arranged work can the employer legally terminate the contract and pay economic compensation; for those who meet the conditions, the employer shall also pay medical subsidies. If the employer terminates the contract without going through the above procedures, it is an illegal termination, and the employee may request the employer to continue to perform the labor contract or claim compensation at twice the standard of economic compensation.
This case is handled by Beijing Henglu Law FirmFeng NaThe attorney (practice license number: 11101202211562923, subject to the document issued by the judicial administrative organ) acts as the agent.

IV. Practical suggestions and legal basis

Action list: First, calculate the medical leave period and retain the sick leave and treatment materials; Second, require the unit to provide a written explanation of the basis and reasons for the termination; Third, verify whether appropriate work has been arranged and whether the notification and trade union procedures have been fulfilled; Fourth, sign the severance agreement with caution to avoid waiving rights; Fifth, promptly apply for labor arbitration to claim compensation in the event of an unlawful termination. For disputes involving the termination of labor contracts, you may refer to the relevant provisions.Labor arbitration and work-related injury compensationFor issues related to work-related injuries and medical treatment, you can refer to the following documents for reference.Personal injury and medical disputesLegal basis: Article 39, Article 40, Article 41, Article 42, Article 43, Article 46, Article 48, and Article 87 of the Labor Contract Law of the People's Republic of China (amended in 2012); and the "Regulations on the Medical Leave for Enterprise Employees Suffering from Illness or Non-work-related Injuries" (implemented on January 1, 1995). The specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglu Law Firm's Advice

Firstly, during the medical leave period, the employer shall not terminate the employment contract on the grounds of incompetence or downsizing. Secondly, to terminate the employment contract after the medical leave period, the employer must first arrange appropriate work and comply with the relevant procedures. Thirdly, before signing the severance agreement, the employee should fully assess whether to waive their rights. Fourthly, in the event of an unlawful termination, the employee may claim double compensation or demand continued performance of the contract. For disputes and claims related to termination, the parties may seek resolution through legal channels.Labor arbitration and work-related injury compensationThe service is supported, and cases involving work-related injury identification and compensation can be combined togetherPersonal injury and medical disputesFor reference, you can refer to the section dealing with the enforcement of compensation paymentsCreditor's rights and debts, and enforcementColumn.

VI. Frequently Asked Questions

Q1: Can I be dismissed during my sick leave?

During the medical leave period, in principle, the employer cannot terminate the labor contract in accordance with the provisions on no-fault dismissal or economic layoffs; however, if the employee commits serious violations of discipline or is subject to criminal prosecution, the employer may still terminate the contract in accordance with the law. Such issues also need to be judged based on complete materials and statutory periods. The parties concerned should promptly fix evidence, pay attention to the statute of limitations and procedural deadlines, confirm key matters in writing, and, if necessary, choose appropriate paths with the assistance of professional lawyers and assert their rights in a timely manner, so as to reduce the adverse effects caused by insufficient evidence or the expiration of time limits.

Q2: Can the employment contract be terminated after the expiration of the medical leave period?

Yes, but subject to certain conditions. The employer should first arrange suitable work for the employee. If the employee is unable to perform either the original job or the newly arranged job, the employer may terminate the employment contract in accordance with the law, and shall notify the employee in advance or pay compensation in lieu of notice, as well as pay economic compensation. Such issues must also be judged based on complete materials and statutory time periods. The parties involved should promptly secure evidence, pay attention to statutes of limitations and procedural deadlines, confirm key matters in writing, and, if necessary, choose appropriate approaches with the assistance of professional lawyers and assert their rights in a timely manner, in order to reduce the adverse effects of insufficient evidence or expired time limits.

Q3: How much compensation can I get for an illegal termination?

Workers may request to continue performing the labor contract; if they do not request to continue performing it or are unable to do so, they may claim compensation at twice the standard of economic compensation. The calculation basis for economic compensation is one month's salary per year of work experience. Such issues must also be judged based on complete materials and statutory periods. Parties should promptly fix evidence, pay attention to the statute of limitations and procedural deadlines, confirm key matters in writing, and, if necessary, choose appropriate paths with the assistance of professional lawyers and assert their rights in a timely manner to reduce the adverse effects of insufficient evidence or the passage of time limits.

Q4: How long does the arbitration take?

Labor arbitration generally renders a decision within 45 days from the date of acceptance, and the time limit may be extended in accordance with the law for complex cases. If the parties are dissatisfied with the decision, they may file a lawsuit with the people's court within 15 days from the date of receipt of the decision. Such issues must also be judged in light of the complete materials and statutory time periods. The parties should promptly fix the evidence, pay attention to the statute of limitations and procedural deadlines, confirm key matters in writing, and, if necessary, choose appropriate paths with the assistance of professional lawyers and assert their rights in a timely manner to reduce the adverse effects of insufficient evidence or the expiration of time limits.

Q5: If I am forced to sign a resignation agreement, can I still protect my rights and interests?

It depends on the circumstances. If there is fraud, coercion, or a major misunderstanding in the agreement, you can claim its revocation; if the content of the agreement is grossly unfair or violates mandatory legal provisions, you can also claim corresponding rights. It is recommended to consult a lawyer as soon as possible to evaluate the validity and statute of limitations of the agreement. Such issues also need to be judged based on complete materials and statutory periods. The parties should promptly fix evidence, pay attention to the statute of limitations and procedural deadlines, confirm key matters in writing, and, if necessary, choose appropriate paths with the assistance of professional lawyers and claim rights in a timely manner to reduce the adverse effects of insufficient evidence or the expiration of time limits.

The above content is based on the judicial practice in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglu Law Firm about specific situations.

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