[Direct answer]In principle, this is not allowed. According to Article 42 of the Labor Contract Law of the People's Republic of China (amended on December 28, 2012, and implemented on July 1, 2013), if a worker is ill or injured non-work-related during the prescribed medical leave period, the employer may not terminate the contract in accordance with Article 40 (non-fault termination) or Article 41 (economic layoffs); if the termination is illegal, the worker may demand continued performance of the contract or request compensation at twice the standard of economic compensation. However, there are three exceptions: if the worker commits serious disciplinary violations or other faults according to Article 39, the contract may still be terminated; if both parties agree to terminate the contract, the contract may be terminated; if the worker cannot perform the original job or the arranged alternative job after the expiration of the medical leave period, the contract may be terminated in accordance with Article 40 and compensation may be paid. The dismissed worker should exercise their rights within the one-year arbitration statute of limitations.

I. Problem Background and Typical Scenarios

Employees who are still in the recovery stage after serious illness or surgery but receive termination notices from the company are a common type of labor dispute. Typical scenarios include: terminating employees during the medical leave period on the grounds of "organizational structure adjustment" or "position elimination"; treating employees as having violated work arrangements during their sick leave; terminating employees immediately after their medical leave expires without paying economic compensation; and directly dismissing employees who fall ill during the probationary period. Workers are often unaware that the medical leave period is a legally protected period, and they sign resignation documents without fully understanding the situation. As a result, they face difficulties in protecting their rights due to insufficient evidence. In arbitration practice in Beijing, the review of the legality of terminations during the medical leave period is very strict, and the employer needs to bear a heavy burden of proof regarding the grounds for termination. Relevant cases can be referred to for reference.Labor arbitration and legal services for work-related injury compensation.

II. Key points of contention

The focus of the dispute lies in the nature of the grounds for termination. Firstly, employers often disguise illegal terminations as "serious violations of rules and regulations" under Article 39, at which point it is necessary to review whether the rules and regulations were formulated through democratic procedures, whether they were publicly announced and notified, and whether the facts of the disciplinary violations are established. If the rules and regulations themselves are invalid, the termination will naturally be deemed illegal. Secondly, whether the medical leave has expired: if the termination occurs while the employee is still on medical leave, it will be deemed illegal under Article 40. The calculation of the cumulative sick leave period often becomes a decisive factor in the outcome. Thirdly, procedural compliance: terminations after the expiration of medical leave require first relocating the employee to another position or arranging for a labor capacity assessment. Terminations without following these procedures are often deemed illegal. Fourthly, compensation scope: whether the compensation for illegal termination, economic compensation, and medical assistance fees can coexist, there are differences in practice across different regions. This needs to be assessed on a case-by-case basis. For cases involving system review, additional reference can be made to relevant regulations.Business and contract dispute services for enterprises.

III. Professional analysis by Henglue Law Firm

Based on practical observations in handling disputes over the termination of medical leave, employers often lose cases due to "inconsistencies between the reasons for termination and the evidence": the notice states that the objective circumstances have changed, but during the arbitration stage, they change their story to claim that the employee committed serious disciplinary violations, which is contradictory and hard to justify; or the rules and regulations were not subject to democratic procedures and public announcements, and the provisions used to terminate the contract are invalid. On the employee's side, common mistakes include taking oral leave without leaving written records, which can be used against them as evidence of absenteeism; or signing a "consensual termination" agreement under pressure, which is hard to refute later. When handling such cases, Henglu Law Firm usually takes the termination notice as the core evidence of the employer's termination reasons, then checks them one by one against the expiration of the medical leave, the validity of the rules and regulations, and procedural flaws, claiming compensation for unlawful termination or demanding continued performance. At the same time, it calculates the difference in sick leave wages and unpaid benefits. Individual case solutions can be referenced from this.Special services and other case services.

IV. Practical suggestions and legal basis

The core basis is Article 42 of the Labor Contract Law of the People's Republic of China (amended on December 28, 2012, and implemented on July 1, 2013) (prohibiting termination according to Articles 40 and 41 during the medical leave period), Article 39 (no restrictions on termination due to negligence), Article 40 (1) (termination due to the employee's inability to perform their original job or arrange for alternative work after the medical leave period requires 30-day written notice or an additional month's salary), Articles 46 and 47 (economic compensation and the standard of one month's salary for each completed year of service), and Article 87 (double the standard of economic compensation for unlawful termination). Procedurally, Article 27 of the Labor Dispute Mediation and Arbitration Law of the People's Republic of China (implemented on May 1, 2008) applies a one-year arbitration statute of limitations. Requests for medical subsidies upon termination at the end of the medical leave period vary across different regions. The current effective regulations and judicial rulings shall prevail. Practical advice: First, secure the termination notice and reasons; then calculate the employee's seniority and salary base; finally determine the combination of claims.

5. Henglue Law Firm's Advice

After receiving the notice of termination, do not rush to sign any "voluntary resignation" or "negotiated termination" documents. The first step requires the employer to issue a written notice of termination and state the reasons; the second step is to check whether the termination date falls within the medical period and which clause it is based on; the third step is to collect medical records, leave records, pay slips, and communication records; the fourth step is to apply for arbitration within the one-year arbitration statute of limitations and claim compensation for unlawful termination, the difference in sick leave wages, and other benefits. If the employer claims that the employee was absent without leave, the employee should immediately supplement the evidence of leave records. Once the statute of limitations has passed, the employee will lose the basis for winning the arbitration, so it's better to take action as soon as possible. After the compensation is determined, if the other party refuses to pay, the employee can take legal action against them.Creditor-debtor relations and enforcement case servicesAdvance the implementation.

VI. Frequently Asked Questions

Q1: If I am dismissed during the medical leave period, can I request compensation?

It can be claimed according to law. If the unit terminates the employment contract during the medical leave period in accordance with Articles 40 and 41, it is an illegal termination. The worker may choose to request the continuation of the employment contract, or demand compensation at twice the standard of economic compensation; the base amount of compensation shall be calculated according to the average monthly salary of the previous twelve months, and one month's salary shall be calculated for each year of service. If the unit terminates the contract on the grounds of serious disciplinary violations according to Article 39, it shall provide evidence of the basis and facts of the disciplinary violations. If the evidence cannot be provided, it shall also constitute an illegal termination. Whether the claim can be established depends on the reason for the termination and the evidence. It is recommended to first obtain a written notice and then initiate arbitration.

Q2: What evidence do I need to prepare for a dispute over dismissal during the medical leave period?

Suggested preparation: the termination notice or the recording of the dismissal conversation (to confirm the reasons and timing of the termination), the labor contract and social insurance payment records, the diagnosis certificate and medical records, the sick leave note and leave approval records (to refute the claim of absenteeism), the bank statement of wages (to determine the compensation base), and the signed records of the company's rules and regulations (to review the effectiveness of the rules). If the company claims to terminate the contract through consultation, it is also necessary to keep the chat records of the consultation process. The core evidence is to restore the two facts that "the termination occurred during the medical period" and "the reasons for the termination are unfounded", and then form a complete closed loop before making a claim.

Q3: How much does it cost to defend against a dismissal during the medical leave period?

Labor arbitration is free of charge. According to Article 53 of the Labor Dispute Mediation and Arbitration Law, the arbitration committee shall not charge any fees from the parties. The acceptance fee for subsequent lawsuits is 10 yuan per case, which is very low. The attorney's fee shall be determined through consultation based on the difficulty of the case and the subject matter, and may be charged on a per-item basis or on a percentage basis, subject to the terms of the contract. The compensation for unlawful termination may reach several months or even more than ten months' salary. The benefits of protecting rights are usually much higher than the costs. Workers do not need to give up their rights due to cost concerns. They can first consult a lawyer to assess the strength of the evidence and then decide whether to hire a lawyer.

Q4: How long will it take to resolve disputes over dismissals during the medical leave period?

During the arbitration stage, according to Article 43 of the Labor Dispute Mediation and Arbitration Law, the arbitration process shall be completed within 45 days after acceptance. For complex cases, the time limit may be extended by no more than 15 days. Most cases will issue a ruling within one to two months. If you are not satisfied with the ruling, you can file a lawsuit within 15 days. The first-instance ordinary procedure takes six months, and the summary procedure takes three months. The second-instance procedure generally takes three months. If the unit is liquidated, transfers assets, or the case requires appraisal, the time period will be extended accordingly. Overall, it usually takes half a year to a year from applying for arbitration to receiving the execution payment. It is advisable to start the process as soon as possible and consider asset preservation at the same time.

Q5: The company asked me to resign voluntarily during my medical leave. What should I do?

Don't resign voluntarily easily. Resigning voluntarily will result in the loss of the right to claim compensation for unlawful termination and economic compensation, and you can only claim the difference in wages during sick leave. When facing pressure, you can respond as follows: require the company to put your opinions in writing; make it clear that you are entitled to protection during the medical leave period according to the law; continue to submit sick leave and leave materials in accordance with the system to avoid being caught "absent without leave"; and keep the recording of the conversation and chat records. If the unit subsequently terminates the employment unlawfully, you can apply for arbitration with fixed evidence; for resignation agreements signed under coercion or fraud, you can claim to revoke them, but it's difficult to provide evidence. Prevention is always better than remedy.

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 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 limits.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.