An employee of a company claimed that he started working for the company in November 2014 and officially signed a labor contract with the company on March 1, 2015. The employee took sick leave from January 1, 2020 due to uremia. The company raised the following questions:

(1) How is his medical period calculated? Is the medical period calculated as three months or six months?

(2) His labor contract expires on February 29, 2020. The company does not want to renew it now. Can the company not renew it when the labor contract expires as usual? Or do we need to sign another agreement?

(3) How is the salary paid during the medical period?

(4) What are the risks and compensation standards for terminating the labor contract during the medical period?

(1) How is the medical period calculated? Is the employee's medical period calculated as three months or six months?

Article 2 of the "Regulations on Medical Treatment Period for Enterprise Employees Suffering from Illness or Non-Work-Related Injury" stipulates that the medical treatment period refers to the time limit during which enterprise employees who stop working for medical treatment due to illness or non-work-related injury shall not have their labor contracts terminated. Article 3 stipulates: "Enterprise employees who need to stop working for medical treatment due to illness or non-work-related injury shall be given a medical treatment period of three months to twenty-four months depending on their actual working years and working years in the unit: ① Those with less than ten years of actual working years and less than five years of working years in the unit shall have three months; those with more than five years shall have six months. ② Those with more than ten years of actual working years and less than five years of working years in the unit shall have six months; those with more than five years but less than ten years shall have nine months; those with more than ten years but less than fifteen years shall have twelve months; those with more than fifteen years but less than twenty years shall have eighteen months; those with more than twenty years shall have twenty-four months." Article 4 stipulates: "The medical treatment period of three months shall be calculated based on the cumulative sick leave time within six months; the medical treatment period of six months shall be calculated based on the cumulative sick leave time within twelve months; the medical treatment period of nine months shall be calculated based on the cumulative sick leave time within fifteen months; the medical treatment period of twelve months shall be calculated based on the cumulative sick leave time within eighteen months; the medical treatment period of eighteen months shall be calculated based on the cumulative sick leave time within twenty-four months; the medical treatment period of twenty-four months shall be calculated based on the cumulative sick leave time within thirty months."

Article 1 of the "Notice of the Ministry of Labor on Implementing the " stipulates that the calculation of the medical treatment period shall start from the first day of sick leave and be calculated cumulatively. During the sick leave period, public holidays, holidays, and statutory holidays are included.

According to the above regulations, if calculated from the employee's actual employment date of November 2014 to December 31, 2020, the working years have exceeded five years, and the medical period is six months; if calculated from the date of signing the labor contract (March 1, 2015), the working years are less than five years, then the medical period is three months.

Therefore, the key is to determine the employee's working years in the company. For the disputed issue of working years, the company should verify, including verifying and confirming with the employee, to determine the working years. Once the working years are determined, the medical period is determined. If the employee did work for the company in November 2014, the medical period should be calculated based on the actual working years instead of the date of signing the labor contract, so the employee's medical period should be six months. These six months of medical period are determined between January 1, 2020 and December 31, and the cumulative sick leave of six months during this period is considered the end of the medical period.

(2) The employee's labor contract expires, and the company does not want to renew it. Can the labor contract be terminated?

Article 42 and Article 45, Paragraph 3 of the "Labor Contract Law" stipulate that if the labor contract expires and the employee is suffering from an illness or non-work-related injury and is within the prescribed medical period, the labor contract shall be extended until the corresponding situation disappears. That is, according to the law, the employee cannot go through the termination of the labor contract procedures under normal circumstances when the labor contract expires during the prescribed medical period, but must wait until the medical period expires before going through the termination procedures. The employee's labor contract expires on February 29, 2020, and is still within the medical period, so it should be extended to the date of expiration of the medical period.

(3) How is the salary paid during the medical period?

The company should pay the corresponding salary during the medical period. According to the relevant provisions of the "Opinions on Implementing Several Issues of the " and the "Interim Provisions on Wage Payment in the Guangxi Zhuang Autonomous Region", during the treatment period for employees suffering from illness or non-work-related injuries, the company shall pay their sick leave wages or sickness relief funds in accordance with relevant regulations within the prescribed medical period. The sick leave wages or sickness relief funds can be lower than the local minimum wage standard, but cannot be lower than 80% of the minimum wage standard. Taking Nanning City as an example, the minimum wage standard from March 2020 is 1810 yuan, which is no less than 80% of the minimum wage standard, which is 1448 yuan. Of course, if the company has regulations on sick leave wages, it shall be handled in accordance with the regulations, or if there are agreements in the labor contract (including supplementary agreements), it shall be handled in accordance with the agreements, but the monthly sick leave wages should not be less than 1448 yuan.

(4) Risks and compensation standards for terminating the labor contract during the medical period

According to the relevant provisions of the "Labor Contract Law", the employer shall not terminate the labor contract during the prescribed medical period of the employee. If the labor contract is terminated, it constitutes illegal termination or illegal termination, and the legal consequences of illegal termination or illegal termination shall be borne.

If the company illegally terminates the labor contract, according to Article 48 of the "Labor Contract Law", if the employee requests to continue performing the labor contract, the employer shall continue to perform it; if the employee does not request to continue performing the labor contract or the labor contract cannot continue to be performed, the employer shall pay compensation in accordance with the provisions of Article 87 of this Law. According to Article 87, the company shall pay compensation to the employee at twice the economic compensation standard stipulated in Article 47 of this Law. According to Article 47, economic compensation shall be paid to the employee at the standard of one month's salary for each full year of work in the unit. If it is more than six months but less than one year, it shall be calculated as one year; if it is less than six months, economic compensation of half a month's salary shall be paid to the employee. Monthly salary refers to the average salary of the employee in the twelve months before the termination of the labor contract.

In this case, the company terminates the labor contract during the medical period. Assuming that the employee chooses not to continue performing the labor contract, from November 2014 to February 29, 2020, his working years in the company are 5.5 years, and the average salary for the twelve months before the termination is 2,500 yuan, then the compensation that the company should pay is 5.5×2500×2=27500 yuan.

Terminating the labor contract during the medical period may constitute illegal termination, so the company should properly handle related issues during the employee's medical period.

(1) The company should verify the sick leave status of the sick employee, determine the working years, determine the medical period, and pay sick leave wages in accordance with regulations.

(2) Properly handle labor contract term matters.

1. If an employee intentionally fails to return to work after the medical leave expires during the term of the labor contract, it is recommended that the company serve the employee with a 'Notice of Return to Work After Expiration of Medical Leave,' clearly informing them that they should return to work after the medical leave expires; if the employee refuses to return to work without a valid reason or is indeed unable to work due to illness, the contract should be terminated according to the relevant regulations of 'Expiration of Medical Leave.'

2. If an employee is unable to return to work for a long period due to a special illness and has a long medical leave, it is recommended that the company sign a 'Medical Leave Agreement' with the employee, clarifying the standard for sick pay during the medical leave, the rights and obligations of both parties, and the handling of the labor relationship after the expiration of the medical leave.

3. The company cannot terminate the labor contract within the employee's medical leave period, unless a consensus can be reached through negotiation. If the labor contract is terminated through mutual agreement, a 'Negotiated Termination of Labor Contract' should be signed, clearly stating that the termination agreement is reached through mutual agreement.