[Direct answer]Generally, this is not allowed. During the period of suspension of work with pay, or when an employee is confirmed to have lost or partially lost their ability to work, the employer shall not terminate the employment contract in accordance with Articles 40 and 41 of the Labor Contract Law of the People's Republic of China (adopted on June 29, 2007 and amended on December 28, 2012); during the period of suspension of work with pay, the original salary and welfare benefits of the injured employee shall remain unchanged, and the employer shall pay them monthly. If the labor contract expires during the period of work-related injury treatment, it shall be extended until the corresponding circumstances disappear. If the employer unlawfully terminates the contract, the employee may request to continue performing the contract or claim compensation calculated at twice the standard of economic compensation. If the employee has serious disciplinary violations or is subject to criminal prosecution in accordance with the law, the employer may still terminate the contract in accordance with Article 39.

I. Problem background and typical scenarios

Being dismissed during the treatment of work-related injuries is one of the most acute conflicts in labor rights protection. Typical situations include: after the worker is hospitalized for surgery, the unit issues a termination notice on the grounds of "job adjustment" or "inability to perform the job"; the salary during the suspension of work and retention of pay is paid as sick leave salary, and then the worker is asked to sign a resignation agreement; the unit promises to continue to pay social insurance while stopping arranging work and paying salaries, forcing the worker to resign on his own. In this situation, workers often face three pressures at the same time: medical expenses, rehabilitation costs, and income interruption, which makes them prone to signing unfavorable settlement documents in a hurry.

II. Key points of contention

First, the legal basis for dismissal. Work-related injury victims are subject to special protection, and employers can only follow the fault-based dismissal path in Article 39. Dismissal under Articles 40 and 41 is considered illegal. Second, determination of the period of suspension of work with continued pay. The period of suspension of work with continued pay generally does not exceed 12 months. In cases of severe injuries or special circumstances, the municipal-level labor capacity appraisal committee may approve an appropriate extension, but the extension must not exceed 12 months. During this period, the employer must pay the worker's salary and benefits on a monthly basis. Third, handling of labor contracts that expire during the treatment period. If the contract expires during the period of suspension of work with continued pay or after the labor capacity appraisal conclusion is issued, the contract shall not be terminated until the corresponding circumstances disappear. Fourth, choice of compensation methods. In cases of illegal dismissal, workers can request to continue the contract and recover unpaid wages, or opt to claim double compensation instead. The economic effects of these two options differ significantly. Fifth, differences in disability ratings. Those rated as level I to level IV retain their labor relationship and retire from work; those rated as level V and level VI are generally assigned appropriate work by the employer; those rated as level VII to level X receive a one-time work-related injury medical subsidy and a one-time disability employment subsidy from the fund and the employer upon the expiration of the labor contract or upon the worker's request for termination.Work-related injury compensationIn practice, the timing of this step directly affects the benefits that can be obtained.

III. Professional analysis by Henglue Law Firm

The experience of Henglu Law Firm in handling such cases shows that employers are willing to take action during the treatment of work-related injuries, usually because they have not subscribed to insurance or insured in full, are eager to shift the cost to employees, or may be due to the seriousness of the injury and concerns about subsequent disability benefits. In practice, there are three main types: First, the termination notice states "consensual agreement", but in reality, it suspends wages, cuts off access to the company's premises, and withdraws employee badges to exert pressure; Second, employers terminate the contract on the grounds of absenteeism, while the employee is actually hospitalized or under a doctor's orders for complete rest, and the employer deliberately refuses to approve leave; Third, the contract is not renewed when it expires, avoiding the obligation of extending the contract for injured employees. When reviewing such cases, judges focus on three key points: the true reason for the termination and the form of the notice, whether the termination basis meets legal requirements, and whether the employer has fulfilled its obligations to provide evidence and deliver notices. For claims of termination due to employee fault, the employer must provide evidence to prove the existence of disciplinary violations, the legality and effectiveness of the rules and regulations, and the fact that the employee has been informed of them, as well as the compliance with the processing procedures. Any omission in any of these steps may be deemed an illegal termination. Common pitfalls include: employees signing agreements of "voluntary resignation" and "waiving all labor dispute claims" while still in the hospital, only claiming compensation without verifying whether they would choose to continue the contract if it were more beneficial, and ignoring independent claims such as wages during the suspension period, medical expenses, and one-time disability employment subsidies. Therefore, after receiving the termination notice, employees should first apply for a labor capacity assessment to determine the disability level, then comprehensively calculate the difference in benefits between the two relief paths, and submit an arbitration request simultaneously. For cases involving the legality of the termination process and the review of the effectiveness of the rules and regulations, relevant evidence can be combined with other materials to support the claims.Business and contract disputes in enterprisesThe approach to handling disputes over contract termination in China; for those involving the availability of compensation and the risk of enforcement, you may refer to the following for reference.Creditor's rights and debts, and enforcementMy practical experience in this field.

IV. Practical suggestions and legal basis

According to Article 42 Paragraph 2 of the Labor Contract Law of the People's Republic of China (adopted on June 29, 2007 and amended on December 28, 2012), which stipulates that employees who suffer from occupational diseases or work-related injuries and are confirmed to have lost or partially lost their ability to work shall not be dismissed in accordance with Articles 40 and 41; Article 45 on the renewal of labor contracts; Article 47 on the calculation standards for economic compensation; Article 48 and Article 87 on the payment of compensation twice the amount after illegal dismissal; as well as Article 33 of the Work Injury Insurance Regulations (promulgated by Decree No. 375 of the State Council on April 27, 2003 and amended on December 20, 2010, effective from January 1, 2011), which stipulates the rules on the suspension of work and pay during the recovery period and the one-time work injury medical subsidies and one-time disability employment subsidies for grades 7 to 10 disabilities, it is recommended to follow the following procedures: First, after receiving the notice of dismissal, do not sign any "voluntary resignation" or "waiver of rights" documents. First, take photos and retain all documents, and keep the delivery receipts. Second, fix the hospitalization records, diagnosis certificates, medical orders, and leave approval records to prove that they are in the suspension of work and pay period. Third, request the employer in writing to restore the original salary and welfare benefits, and clearly state that they do not agree to the dismissal. Fourth, apply for labor capacity appraisal within the statutory time limit to determine the disability grade and the length of the suspension of work and pay period. Fifth, promptly apply for labor and personnel dispute arbitration to request confirmation of the illegality of the dismissal, continuation of the contract, or payment of twice the compensation, and simultaneously claim the wage differences during the suspension of work and pay period and medical expenses. Sixth, if dissatisfied with the arbitration result, file a lawsuit with the court within 15 days from the date of receipt of the arbitration award.

5. Henglue Law Firm's Reminder

The initiative in such cases actually lies with the employees, provided that they do not sign documents in a panic or delay the initiation of procedures. It should be particularly noted that the wage standard during the suspension of work and retention of salary is the original wage and benefits. The practice of employers paying employees according to sick leave wages or minimum wages is usually unjustifiable. The payment timing and termination method of the one-time disability employment subsidy and one-time work-related injury medical subsidy are strongly related. If the employee leaves the job before the disability rating is determined, the benefits may be significantly reduced. Conversely, employers should also be aware that if the work-related injury employee terminates the employment unilaterally during the suspension of work and retention of salary, in addition to bearing double compensation, they may also be required to make up for the social insurance and back pay, which will cost more than complying with the law. If both parties truly wish to negotiate, they should do so after the conclusion of the labor capacity appraisal, and clearly specify the compensation items, payment time, and breach of contract liability. For complex situations involving parallel procedures of termination, appraisal, and claim for benefits, it is advisable to seek legal assistance.Specialised legal servicesCoordinate and arrange things in an overall way; for those cases involving the determination of the causal relationship between the injury and the worker's work capacity, reference can be made to the relevant provisions.Personal injury and medical disputesI have the experience of handling similar cases. For any procedural issues, please feel free to contact me.Beijing Henglu Law FirmConsultation.

VI. Frequently Asked Questions

Q1: Is there a high chance of winning a compensation claim if one alleges that the termination of the contract was illegal?

If an employee is in the period of suspension of work with pay and the employer fails to terminate the employment relationship in accordance with Article 39, there is a high likelihood that the termination will be deemed illegal. However, if the employer can provide evidence to prove that the employee committed serious violations of the rules and regulations, that the rules and regulations are legal and effective and that the employer has informed and followed the relevant procedures, or that the employee has signed a clear voluntary resignation agreement, the outcome may be different. The determination should be based on the specific evidence provided.

Q2: What evidence do I need to prepare?

Labor contracts and termination notices, hospital medical records and diagnosis certificates, doctor's orders for rest recommendations, leave approval records, payroll records and social insurance payment records, attendance and access control records, chat or audio recordings of communication with the employer, work-related injury identification decisions, and labor capacity assessment conclusions.

Q3: What's the approximate cost?

Arbitration of labor and personnel disputes is free of charge, and there is no charge for work-related injury identification and labor capacity assessment. If a request for continued performance or a claim for compensation is brought to litigation, a filing fee of 10 yuan per case shall be paid according to the standard for labor dispute cases. Lawyer's fees shall be subject to the provisions of the entrustment contract and may be negotiated in stages.

Q4: How long does the process take?

Arbitration generally issues a ruling within 45 days after acceptance, which can be extended by 15 days; the first-instance litigation against the ruling usually concludes within three months, and the summary procedure takes even less time; the conclusion of the labor capacity appraisal is generally issued within 60 days after acceptance, and the overall period is usually within half a year.

Q5: What should I do first?

Do not sign any documents regarding resignation or waiver of rights. First, inform your employer in writing that you do not agree to the termination and request the restoration of your benefits. At the same time, collect evidence of your hospitalization and leave requests. Subsequently, apply for a labor capacity assessment and initiate labor arbitration promptly.

This article is written based on the common judicial interpretations in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify the regional differences.

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.