It is common sense that a sick laborer, especially someone who has cancer, can rest at home and receive medical treatment for a certain period of time. In the following case, Yang, who had cancer, went to work even though she was not fully recovered. When the conditions of a laborer’s illness and recuperation are separated, how should we calculate the appropriate medical treatment period? This problem occurred between Yang and her employing unit.

I. Case Playback

In November 1998, Yang had sudden and unprecedented pain. She learned she had cancer, immediately stopped work to rest and underwent treatment. After one month of surgery and treatment, Yang left the hospital in December 1998, was sent home to rest and continued to receive chemotherapy for another six months. During her rest and treatment, Yang suffered not only the pain from chemotherapy, but also experienced extreme stress that she might lose her job.
Yang was a senior manager in an international company. She had worked in the human resource department of this company and entered into a labor contract with a term of two years in November of 1995. When the first labor contract expired in October of 1997, Yang and the company renewed the labor contract with a term from November 1, 1997 to October 30, 1999. In June of 1999, when Yang was still recuperating at home, the human resource director at the company visited her and told her that she would be fired if she could not resume full-time work within the next two months. Yang felt she had no choice but go back to work.
In response to a company request, on July 9, 1999, Yang went to her supervising doctor and reported that her cancer was under control and she could resume full-time work. The doctor issued a certificate agreeing to her return to work. In agreement with the company, Yang resumed her full-time work on September 1, 1999. Later, Yang had another 6 and one-half days of sick leave.
One month later, Yang had a meeting with the company’s deputy general manager where he informed her that her labor contract would naturally expire on October 31, 1999 and would not be renewed again. At the same time, the company stated that if she had no remaining sick days, Yang should work until the expiration date. Yang pointed out that the company was liable for economic compensation if they terminated the labor contract during her medical treatment period. Yang negotiated with the company several times, and the general manager finally agreed to pay economic compensation equal to ten months of salary. In the following month, Yang was forced to take sick leave after the arduous negotiations and over-work left her feeling fatigued and unwell.
On October 26, 1999, Yang visited her doctor again. As her supervising doctor was away, two other doctors issued a certificate for her half-day sick leave. The following day, she visited the doctor again and arranged a thorough examination. The supervising doctor thought her illness had worsened and issued a two-week sick leave certificate. He also suggested that the company extend her medical treatment period.
In early November 1999, Yang went to the company to collect her compensation. However, the company had a new issue. The company pointed out that her compensation was subject to individual income tax that was to be withheld by the company. Yang pointed out that such medical compensation was not subject to taxation and, if anything, she alone should pay the taxes to the tax authority.  No agreement was reached, and the company withdrew Yang’s compensation.
On November 2, 1999, the company suddenly notified Yang that she had to begin the dismissal process. Yang pointed out that, according to the Labor Law, the employing unit could not terminate the labor contract during the laborer’s medical treatment period, and the term of the labor contract should be automatically extended to the end of the medical treatment period. While Yang suffered from cancer, she had used nine months of her medical treatment period up through October 1999, which left three months unused.  What’s more, the sick leave certificate issued by the doctor on October 27 showed that she was still on medical treatment leave until October 31. Therefore, Yang believed it was illegal for the company to terminate the labor contract.
On November 17, 1999, Yang filed her application to the Labor Arbitration Committee and demanded the company resume the labor relationship, specifically to extend the labor contract until the end of the medical treatment period on May 20, 2002 and to pay her salary from November to December of 1999 together with any medical treatment fees accumulated during her leave. Later, Yang submitted several other claims to the Arbitration Committee.
The company responded that Yang had resumed full-time work on August 30, 1999 after obtaining the “return to work” certificate from the hospital. The company notified Yang on September 30, 1999, one month prior to expiration, that the labor contract would not be renewed. Yang did not raise any objections at that time. Therefore, according to Shanghai Foreign-funded Enterprises’ Personnel Management Regulation and Shanghai Labor Contract Regulation, it was appropriate for the company to do this.
On January 21, 2000, the Labor Arbitration Committee issued a judgment on this case. The committee ruled that the labor contract legally expired on October 31, 1999. The company could legally choose not to renew the labor contract and to begin the dismissal process. There were no legal grounds for Yang’s request to resume the labor relationship, to extend the labor contract, or to be compensated for her medical treatment costs. Yang’s petition was refused.
 Unsatisfied, Yang brought a suit to the Court on February 1, 2000. After being warned by the Court, Yang sued to resume the labor appointment relationship, to extend the medical treatment period up to 24 months, neither of which was in her Arbitration application.
The lawyer representing Yang pointed out that because Yang had been working for 20 years, five of which were with the company engaged in this case, she had accumulated a medical treatment leave period up to 12 months within an 18 month period. Yang was notified of her cancer in November 1998 and had undergone nine months of medical treatment between November 20, 1998 and August 31, 1999. She still had another consecutive three months of medical treatment leave from September 1999 to May 2000. In total, Yang had 12 months of medical leave during the 18 months period from November 1998 to May 2000. The six and half day sick leave certificate and her two weeks sick leave beginning October 27, 1999 both indicated that Yang was still within the medical treatment period.
In the meantime, according to the Notification of Several Problems about Enforcing Shanghai Labor Contracts, it was provided that the enterprise’s Labor Identification Committee should, based on the employee application, extend the medical treatment period of those suffering from cancer, psychiatric disorder or paralysis. The combined medical treatment leave, when combining the extended and original period, should be no shorter than 24 months. Therefore, the plaintiff was still within the statutory medical treatment period.
The company pointed out that Yang had returned to work after obtaining the “return to work” certification from her supervising doctor. Yang claimed only the economic compensation in arbitration, not for extension of her medical treatment leave period. When she was notified about the labor contract expiration, Yang did not provide the company with a certificate from her doctor regarding the extension of her medical treatment.
Both parties settled the salary on November 1 and 2 and processed the dismissal procedures. The plaintiff visited the doctor on October 26. However, the hospital did not have any record of her visit, and the plaintiff never asked for sick leave using a certificate from this visit. The plaintiff went to work from October 27 to October 29. The rules at the hospital required that the patient should register for an appointment with the doctor. The appointment must be kept that same day. The company suggested that the plaintiff provided the two-week sick leave certificate afterwards. The defendant pointed out that the plaintiff recovered and returned to full-time work as normally. Therefore, the labor relationship ended naturally when the labor contract expired.

II. Legal Background

Medical treatment period refers to the period in which the laborer suffers from an illness or a non-work-related injury for which the laborer receives medical treatment. The employing unit cannot terminate the labor contract during this period. In traditional labor relationships under the planned economy, the employing unit was responsible for paying the salary to the laborer who had a long-term sick-leave of six months or more. This was a great burden on the employing unit. In the market economy system, that system could not survive; however, it does not necessarily mean that the employing unit shall be exempted from all responsibilities.
The medical treatment period is intended for those workers who suffer from an illness or non-work-related injury for which medical leave is necessary. According to the laborer’s working history and number of years in the employing unit, the medical treatment period can last from 3 to 24 months. In order to protect the laborer’s rights and position during the medical treatment period, the employing unit is not authorized to dissolve the labor contract.
Article 3 of the Medical Treatment Regulation of Enterprises’ Employee Who Suffers and Non-work-related Injury promulgated by the Ministry of Labor in 1994 provides that, “When an enterprise’s employee gets sick or suffers a non-work-related injury that requires the employee to stop work to receive medical treatment, according to one’s total working years and working years in the current employing unit, a period of medical treatment ranging from 3 months to 24 months should be granted:
(1) For those who have worked less than 10 years in total, a 3-month-period of medical treatment should be given if one has worked in the unit for less than 5 years; a 6-month period of medical treatment should be given if one has worked in the unit for more than 5 years;
(2) For those who have worked more than 10 years in total, a 6-month period of medical treatment should be given if one has worked in the unit for less than 5 years; a 9-month period of medical treatment should be given if one has worked in the unit for more than 5 years but less than 10 years; a 12-month period of medical treatment should be given if one has worked in the unit for more than 10 years but less than 15 years; an 18-month period of medical treatment should be given if one has worked in the unit for more than 15 years but less than 20 years; a 24-month period of medical treatment should be given if one has worked in the unit for more than 20 years;
Article 4 provides that the 3-month period of medical treatment is calculated based on a 6-month cycle; a 6-month period of medical treatment is calculated based on a 12-month cycle; a 9-month period of medical treatment is calculated based on a 15-month cycle; a 12-month period of medical treatment is calculated based on a 18-month cycle; a 18-month period of medical treatment is calculated based on a 24-month cycle; a 24-month period of medical treatment is calculated based on a 30-month cycle.
According to some local regulations, if a laborer suffers a very serious illness, the employing unit shall extend the medical treatment period upon receiving the laborer’s application.
 Four factors must be taken into serious consideration when calculating the length of medical treatment leave: total working years, working years in the employing unit, medical treatment period and the cycle of medical treatment period.
The relationships among the four are displayed below.
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With respect to the termination of the labor contract, when the contract is expired or the termination conditions are satisfied but the laborer is still within the medical treatment period, the employing unit shall extend the term until the laborer is recovered or until the end of the statutory medical treatment period. 
As to the dissolution of the labor contract, Article 26 of the Labor Law provides that, “If a worker, after a medical treatment for a disease or non-work-related injury, is unable to do his original job or another job arranged by the employing unit, the employing unit may dissolve the labor contract but shall submit a written notice to the worker in person 30 days in advance; thereafter, the laborer shall be protected by the social insurance system.” This mechanism is meant to protect the interests of the laborer as well as to limit the burden on the employing unit, hopefully leading to a mutual balance of rights and obligations.
The Labor Contract Law does not change the provisions of the terms of the dissolution, while it does tighten the provisions of labor contract termination related to the medical treatment period. The situations in which the labor contract can be terminated are not changed; however, the Labor Contract Law adds economic compensation as a responsibility of the employing unit.

III. Lawyer Debate

The labor contract can be terminated if the laborer is not within the medical treatment period.
Lawyer Zhu Li from Jinhui Law Firm in support of the employing unit

Even though the laborer was not fully recovered from her illness, the employing unit is entitled to terminate the labor contract if the expiration date does not occur during the medical treatment period.
Article 34 of Some Suggestions about the Problems of Enforcing the Labor Law stipulates that, “Except for cases conforming to the conditions stipulated in Article 25 of the Labor Law, if the labor contract expires when the laborer is still within the medical treatment period, the employing unit is not entitled to terminate the labor contract.” Conversely, if the laborer is not within the medical treatment period when the labor contract expires, the employing unit is entitled to terminate the labor contract as of the fixed expiration date, regardless of whether the laborer has fully recovered or not. In other words, the employing unit is not responsible for the health of the laborer who no longer has a labor relationship with the employing unit.

The labor contract cannot be terminated during the legal medical treatment period.
Lawyer Xiao Qiang from Shanghai Zhicheng Law Firm in support of the laborer

Analyzing the legal validity of the “return to work” and sick leave certificates issued by the hospital, the law never stipulates that the laborer has to obtain these certificates from the doctor in order to resume work. The hospital does not have such forms or documents. The certificates are actually medical suggestion letters issued by the doctor which indicate that the laborer recovered well after surgery and the doctor agrees that the laborer can resume work. However, the certificate cannot be used as evidence that the laborer has recovered in full or that the medical treatment period is over. If we put ourselves in Yang’s situation, it is reasonable to believe that Yang was perhaps compelled to issue a certificate which did not reflect the true nature of her medical condition, weakening the legal validity of the certificates. However, the sick leave certificate issued on October 27 is legal and effective indicating that Yang was within the medical treatment period when the labor contract expired.
Second, with respect to the medical treatment period calculation, the employing unit thought that Yang was fully recovered and did not need medical treatment leave once the certificate was issued. In fact, the medical treatment leave period of up to 12 months had not been used by Yang. There were still 3 months remaining; Yang could also apply to extend the medical treatment period according to law because she suffered from cancer. The employing unit compelled Yang to return to work which was unreasonable, illegal and interrupted the medical treatment period. It is common knowledge that cancer cannot be cured in several months. After Yang returned to work, she asked for several periods of sick leave for reasons related to her cancer, which indicates that her disease was not fully cured. Therefore, even if the medical treatment period was interrupted mid-way, it should be calculated to automatically resume from the time Yang fell sick again.

IV. Final Judgment

After three hearings, the Court confirmed that Yang had cancer beginning in November of 1998 and returned to work after obtaining a doctor-issued certificate indicating that she was able to resume work. This indicates a temporary break in the medical treatment. On October 31, 1999, the company legally notified Yang that the labor contract would be automatically terminated upon expiration of the term. Although Yang asked for a two-week sick leave beginning on October 27, 1999, the hospital-issued certificate did not affect the validity of the labor contract expiration date. Yang did not have any evidence to prove that she applied for an extension of the medical treatment period before the labor contract expired. As the director of the human resource department, Yang should have known that she must submit a sick leave application and meet certain criteria in order to extend the medical treatment period.
On May 29, 2001, the Court issued a judgment overruling Yang’s petition to resume the labor relationship and extend the medical treatment period. On August 10, 2001, Yang appealed to the Intermediate Court, but it denied her appeal.

V. Expert Evaluation

The confirmation of medical treatment leave should be more favorable to the laborer.
Xu Minglang, expert from the Legal Service Center of East China University of Political Science and Law

The medical treatment leave period can be legally extended by 12 months upon application by a laborer who suffers from cancer.
The dispute arose because the employing unit believed that the laborer returned to work because she was fully recovered, indicating that the labor contract could be terminated upon expiration of the contract term. However, the laborer pointed out that, in the days prior to the anticipated contract expiration, she had taken sick leave which then proved that she was still sick to the extent she needed not only normal medical treatment leave but also an extended medical treatment leave. If the Court confirmed that the laborer took several continuous sick leaves in the days before the contract expired, then the labor contract should have been extended correspondingly. If the laborer had taken several nonconsecutive sick leaves instead of taking one continuous sick leave, then should the labor contract still be terminated?
In my opinion, when the law is not clear, we should focus on interpreting the spirit of the law. The purpose of setting up a medical treatment leave period system is to ensure that the laborer gets help from the employing unit and the society. The key disputed fact in this case was the laborer’s actual health condition. Yang suffered from cancer. Was it possible for Yang’s cancer to be cured in a short time? Some medical experts have already answered this question. If the Court was suspicious about the views of the medical experts, then the Court could arrange for additional medical experts to testify. If the Court wanted to confirm whether the laborer was undergoing medical treatment in the days prior to the contract expiration, the Court need not focus exclusively on the laborer’s condition during the final days of the contract, but rather should take a broad look at her overall health condition. The Court should not emphasize so much the extended leave and disregard the multiple short-term leaves. The laborer required several short breaks which indicated that she was still ill.
When the law does make an explicit prescription, I think that the Court might issue a judgment that is more favorable to the laborer—verifying that the laborer was within the medical treatment period rather than emphasizing the last day of the labor contract.

From LexisNexis