[Direct answer]In principle, this is not allowed. According to Article 42 (1) of the Labor Contract Law of the People's Republic of China (adopted on June 29, 2007 and amended on December 28, 2012), if a worker engaged in operations involving occupational hazards fails to undergo an occupational health examination before leaving the job, or if a worker suspected of having an occupational disease is under diagnosis or medical observation, the employer shall not terminate the labor contract in accordance with Articles 40 and 41. The Occupational Disease Prevention and Control Law of the People's Republic of China (adopted on October 27, 2001 and amended for the fourth time on December 29, 2018) also requires employers to organize occupational health examinations before employment, during employment, and upon leaving the job. Employers shall not terminate or terminate the labor contract with workers who have not undergone an occupational health examination before leaving the job. If the contract expires, it shall be extended in accordance with Article 45 of the Labor Contract Law until the corresponding circumstances disappear. If the contract is terminated illegally, the worker may request the employer to continue to perform the contract or claim double compensation.

I. Problem Background and Typical Scenarios

Occupational diseases often have a long incubation period and progressive symptoms. It often takes several months or even longer to identify abnormalities, confirm the diagnosis, and undergo occupational health examinations and occupational disease diagnosis before reaching a conclusion. The controversy often arises during this "window period": when employees have just completed their physical examinations and the diagnosis results have not yet been issued, employers may require them to resign on the grounds of being unsuited to the position, production and operation adjustments, or the expiration of contracts; some employers even stop paying salaries and suspending social insurance immediately after employees apply for diagnosis, attempting to sever the employment relationship. What employees worry most is that once they are dismissed, they will lose the basis for subsequent diagnosis costs, appraisal materials, and benefit claims.

II. Key points of contention

First, the scope of protection during the protection period. Suspected occupational disease patients are protected from the moment they enter the diagnosis or medical observation process until the corresponding circumstances disappear; workers engaged in operations involving occupational disease hazards who have not undergone occupational health examinations before leaving their posts shall not be dismissed either. Second, the handling of contract expiration. The expiration of the term does not automatically terminate the contract, and it should be extended until the end of the diagnosis and observation period. Third, the limits of reasons for dismissal. During the protection period, dismissal cannot be based on reasons such as incompetence or economic layoffs, but if the worker has committed serious violations of discipline or serious dereliction of duty as described in Article 39 of the Labor Contract Law, the employer can still dismiss them. This is a common misunderstanding. Fourth, the consequences of illegal dismissal. The worker can choose to demand the continuation of the contract, or accept compensation and claim twice the standard of economic compensation according to the length of service.

III. Professional analysis by Henglue Law Firm

From Henglue's practical experience in handling cases involving the intersection of occupational diseases and labor relations, the most effective approach for workers to protect their rights is often not to calculate compensation first, but to stabilize the labor relationship first. Once they are dismissed illegally, the interruption of social insurance payments will directly affect the acceptance of occupational disease diagnoses and the burden of expenses. The materials required for the diagnosis, such as the worker's work history and exposure to occupational hazards, are also more likely to be evaded. We usually advise clients to first request the unit in writing to provide materials on their work history and exposure to hazards, report the matter to the health department, and keep evidence of the unit's refusal to cooperate. Another often overlooked step is the pre-departure occupational health examination: if the unit fails to arrange the examination before terminating the employment, the termination itself will have procedural flaws, and it will be difficult to completely remedy the situation afterwards. In practice, some units make workers sign resignation agreements under the guise of consensual termination. Whether such agreements are valid and whether there are major misunderstandings needs to be comprehensively judged based on the progress of the diagnosis at the time of signing. It is best to conduct a professional evaluation before signing, and those involving review of the agreement text can refer to the following:Business and contract disputes in enterprisesThe experience of handling this matter.Labor arbitration and work-related injury compensationWhen the procedures are conducted in parallel with the diagnosis of occupational diseases, the time schedule should be coordinated to avoid the conclusion of one procedure affecting the timeliness of the other.

IV. Practical suggestions and legal basis

According to Articles 35 and 36 of the "Law of the People's Republic of China on the Prevention and Control of Occupational Diseases" (amended for the fourth time on December 29, 2018), Article 42 Paragraph 1, Article 45, Article 47, Article 48, and Article 87 of the "Labor Contract Law of the People's Republic of China" (amended on December 28, 2012), as well as the "Administrative Measures for the Diagnosis and Appraisal of Occupational Diseases" (Order No. 6 of the National Health Commission, implemented on January 4, 2021), we suggest the following: First, require the employer in writing to arrange an occupational health examination upon leaving the workplace and maintain full documentation of the process. Second, after entering the diagnosis or medical observation procedure, immediately notify the employer in writing and demand that the labor relationship be maintained. Third, if the employer insists on terminating the contract, do not easily sign documents such as voluntary resignation or consensual agreements. Fourth, collect occupational history, exposure history, workplace testing reports, and salary and social insurance records. Fifth, promptly apply for labor arbitration to claim continued performance of the contract or compensation for unlawful termination, and link the occupational disease diagnosis conclusion with claims for work-related injury insurance benefits.

5. Henglu Law Firm's Advice

The characteristics of occupational disease cases are slow at both ends and tight in the middle: the diagnosis and appraisal period is long, but the arbitration statute of limitations and the evidence collection window are tight. It is particularly important to note that the statute of limitations for applying for arbitration in labor disputes is one year, calculated from the date when the party knows or should have known that their rights have been infringed. Claims for compensation for illegal dismissal should not be delayed for too long. In addition, occupational disease patients are entitled to work-related injury insurance benefits according to law, and according to Article 58 of the Occupational Disease Prevention and Control Law, they still have the right to obtain civil compensation. The two remedies can be used concurrently, but attention should be paid to the connection between the projects and the avoidance of duplicate calculations. When handling similar cases in the Beijing area, the arbitration institutions are more stringent in reviewing the dismissals during the protected period, and it is usually difficult for units to defend themselves solely on the grounds of operational difficulties. If it involves the implementation of subsequent benefit payments and compensation, reference can be made to the relevant provisions.Creditor's rights and debts, and enforcementBased on my experience; for those involved in reviewing labor contracts and regulations, they can refer to the following for reference:Specialised legal servicesThe overall evaluation can also be entrusted toBeijing Henglu Law FirmPreliminary argumentation.

VI. Frequently Asked Questions

Q1: Can the employer dismiss an employee during the period of occupational disease assessment?

In principle, this is not allowed. During the diagnosis or medical observation period of suspected occupational disease patients, and before the workers engaged in operations exposed to occupational disease hazards leave their posts without undergoing occupational health checks, the unit shall not terminate the labor contract in accordance with Articles 40 and 41 of the Labor Contract Law; however, if the worker violates the rules and regulations seriously or meets the circumstances specified in Article 39, the labor contract may still be terminated.

Q2: What evidence do I need to prepare?

The materials of the employment history and exposure to occupational hazards, the detection reports of occupational hazards in the workplace, the previous occupational health examination reports, the receipts of diagnosis or medical observation, the notifications and communication records of the unit requiring resignation, the records of salary payment and social insurance payment, and the labor contracts.

Q3: What's the approximate cost?

Diagnosis and appraisal of occupational diseases are charged according to regulations, and the standards are determined by the relevant provincial departments. In some cases, the employer shall bear the cost. Labor arbitration is free of charge, and the attorney's fees shall be determined in accordance with the entrustment contract, and the fees may be charged in stages through negotiation.

Q4: How long does the process take?

The diagnosis of occupational diseases is generally made within 30 days from the date of acceptance, and the time limit may be extended under special circumstances; labor arbitration is generally concluded within 45 days from the date of acceptance, and the time limit may be extended by 15 days with approval if the case is complex. The overall time required should be arranged in accordance with the progress of the diagnosis.

Q5: What should I do first?

First, request the unit in writing to arrange for an occupational health examination when leaving the post and retain the relevant documents. At the same time, apply to the health department for an occupational disease diagnosis. After entering the diagnosis or medical observation process, immediately inform the unit in writing to maintain the labor relationship and not to sign documents for voluntary resignation or consensual termination of the employment contract.

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 for specific situations.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence, 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 public 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.