Point of view... "shutdown period" related issues combing.

Published:

2021-12-27

Foreword In the field of labor law in China, there are a large number of laws and regulations and judicial interpretations, and the relevant provisions are complicated, leading to endless disputes. At the same time, based on the consideration of "localization" or "adjusting measures to local conditions", the application of labor law has a strong "regional nature". This paper starts with the laws and regulations, rules and normative documents in the field of labor law, and combines the cases to sort out the related issues of "work stoppage and pay period. Premise for 1. to enjoy the treatment of work stoppage and pay The first paragraph of Article 33 of the Regulations on Work Injury Insurance stipulates that if an employee suffers from an accident at work or suffers from an occupational disease and needs to suspend work to receive work-related injury medical treatment, the original wages and benefits will remain unchanged during the period of suspension of work and salary, and the unit to which he belongs shall pay monthly. According to this provision, it can be seen that there are two prerequisites for the enjoyment of the benefits of the suspension period: first, the employee has suffered an accident injury or occupational disease as a result of work (all work-related injuries shall be recognized by the labor administrative department). The duration and determination of the period of 2. suspension of pay. (I) the duration of the period of suspension of pay The second paragraph of Article 33 of the "Regulations on Work Injury Insurance" stipulates that the period of suspension of work and pay is generally not more than 12 months. If the injury is serious or the situation is special, it may be appropriately extended after confirmation by the labor ability appraisal committee of the city divided into districts, but the extension shall not exceed 12 months. The provision specifies the upper limit of the suspension pay period and the upper limit of the extension. Under normal circumstances, the injury situation can be clearly determined by combining the injury situation with the "Classification Catalogue of Work-Related Workers' Work Suspension and Pay Period" issued by various places; for the injury situation that is not in the "Classification Catalogue of Work-Related Workers' Work Suspension and Pay Period", it is generally calculated according to 6 months. For provinces that have not issued the "Classification Catalogue of Work-Related Workers' Work Stoppage and Pay Period", it shall be determined in combination with the leave certificate of the medical institution or the medical termination period. The method of determining the pay period for (II) work stoppage. After consulting the local labor law regulations and regulations, there are three main ways to determine the period of work stoppage and pay: First, it is determined by the employer directly according to the local work stoppage period catalogue, such as Shandong Province, Tianjin City, Chongqing City, etc. Article 3 of the measures for the Administration of work-related injury workers in Shandong Province shall promptly submit the diagnosis certificate issued by the work-related injury medical service institution to the unit to apply for work stoppage and pay. The employer shall, in accordance with the diagnosis certificate issued by the medical institution of the agreement, determine the period of suspension of work and pay in accordance with the "Classification Catalog of Work-related Workers in Shandong Province" (Annex 1), and notify the injured worker in writing (Annex 2). Article 3 of the measures for the Administration of work stoppage and salary retention of industrial injured workers in Tianjin, industrial injured workers or their close relatives shall promptly submit the diagnosis certificate issued by the medical institution of the industrial injury insurance agreement or the first diagnosis institution to the employer. The employer shall, within 10 working days after receiving the materials, determine the suspension period of the injured workers according to the diagnosis certificate issued by the medical institution and in accordance with the classification catalogue of the suspension and pay period of the injured workers in Tianjin (Annex 1), issue the notice on the determination of the suspension and pay period of the injured workers (Annex 2) to the injured workers, and send a copy to the social insurance agency at the same time. Article 4 of the measures for the Administration of work-related injury workers in Chongqing shall promptly hand over the diagnosis certificate issued by the work-related injury medical service institution to the unit. According to the diagnosis certificate of the work-related injury medical service institution, the employer shall determine the suspension and pay period of the injured employee in accordance with the "Catalogue", and notify the injured employee in writing. The second is determined by the labor ability appraisal committee, such as Shanxi Province, Ningxia Hui Autonomous Region, and Guangdong Province. Article 3 of the measures for the Administration of the period of suspension of work-injured workers in Shanxi Province (for trial implementation), the period of suspension of work-injured workers shall be confirmed by the Labor ability Appraisal Committee in accordance with the diagnosis certificate issued by the "Classification catalogue of the period of suspension of work-injured workers in Shanxi Province" (see annex) and the medical institution. The work-injured employees who have been confirmed by the Labor Ability Appraisal Committee shall notify the work-injured employees, employers and agencies in writing. "Ningxia Hui Autonomous Region Work Injury Workers' Work Suspension Period Management Measures" Article 3 Work Injury Workers' Work Suspension Period shall be determined by the District City Labor Ability Appraisal Service Center (hereinafter referred to as the Labor Ability Appraisal Agency) in accordance with the "Ningxia Hui Autonomous Region Work Injury Insurance Work Suspension Period Classification Catalogue" and work injury insurance agreement medical institutions in accordance with the regular treatment period of the injured part (unstable period and recovery period time) and diagnosis certificate confirmation. The work-injured employees who have been confirmed by the labor ability appraisal agency shall notify the work-injured employees, the employer and the work-related injury insurance agency in writing. Article 4 of the measures for the Administration of work-injured workers in Heilongjiang Province if the injuries suffered by work-injured workers are not included in the Classification catalogue of work-injured workers in Heilongjiang Province, the diagnosis certificate issued by the medical institution or the appraisal conclusion of the work stoppage period made by the municipal labor ability appraisal committee divided into districts shall be the work stoppage period. If the injured worker is injured in many parts or tissues and organs, the longest period of the corresponding work stoppage period shall be taken as the work stoppage period of the injured worker. "Guangdong Province Work Injury Insurance Regulations" Article 25 If an employee needs to suspend work due to work-related injuries to receive work-related injury medical treatment, the original wages and benefits will remain unchanged during the period of suspension and salary retention, and the unit to which he belongs shall pay monthly. The period of suspension of pay shall be determined according to the end period of medical treatment and shall be confirmed by the labor ability appraisal committee, and the maximum period shall not exceed 24 months. Third, it is partly determined by the employer and partly by the labor capacity appraisal committee. Article 3 of the measures for the Administration of work-related injury workers in Heilongjiang Province shall promptly submit the diagnosis certificate or leave certificate issued by the work-related injury medical institution to the employer, and the employer shall, according to the diagnosis certificate of the work-related injury medical institution, in accordance with the classification catalogue of the work-related injury workers' suspension and salary period in Heilongjiang Province, and notify the injured employee in writing. Article 4 If the injury suffered by an injured worker is not included in the Classification Catalogue of Work-off Period for Work-Related Workers in Heilongjiang Province, the conclusion of the work-off period shall be the period of work-off and pay-off by the medical institution or the municipal labor capacity appraisal committee of the district. If the injured worker is injured in many parts or tissues and organs, the longest period of the corresponding work stoppage period shall be taken as the work stoppage period of the injured worker. Summary: For the issue of the period of work stoppage and pay period confirmation, this paper believes that it should first confirm whether the province where the employer is located has issued the "Measures for the Management of Work-Related Workers Work Stop and Pay" and the "Classification Catalogue of Work-Related Workers Work Stop and Pay Period". If the province where you are located has issued the above-mentioned documents, the employer will normally determine the period of suspension of work in accordance with the above-mentioned management measures and catalogues. If the province where you are located has not issued the above-mentioned similar documents, it needs to be determined in combination with the "Regulations on Work Injury Insurance" and the local regulations and evidence materials on the "Regulations on Work Injury Insurance"; the start time of the work stoppage period is generally from the day or the next day when the work injury occurs, until the employee's labor ability level is appraised or returned to work. Remedy for 3. employees to dispute the duration of the suspension pay period or the unit refuses to confirm the suspension pay period. This problem is only for the employees in the provinces that have issued the "Administrative Measures for Work-Related Workers to Stop Work and Pay" and the "Classification Catalogue of Work-Related Workers to Stop Work and Pay Period. (I), there are two types of relief for employees who have a dispute over the period of suspension of pay: First, if there is a dispute between the injured worker or his close relatives (relatives) and the employer over the period of suspension of work, they can submit an application for confirmation to the municipal labor ability appraisal committee divided into districts within a certain period of time, and the labor ability appraisal committee shall make a determination; if they are still dissatisfied with the conclusion made by the municipal labor ability appraisal committee divided into districts, they may apply to the provincial labor ability appraisal committee for reconfirmation within a certain period, the conclusion made by the provincial labor capacity appraisal committee is the final conclusion. Second: If the injured worker has any objection to the suspension period determined by the employer, he can apply to the labor ability appraisal committee of the overall planning area to directly determine the suspension period. The (II)'s relief method for the unit's refusal to confirm the suspension and pay period only exists in the "Administrative Measures for the Suspension and Pay Period of Work Injury Workers in Tianjin". The relevant provisions of this document are as follows: Article 6 If the employer refuses to determine the period of suspension of work and pay, the injured worker or his close relatives may apply to the labor capacity appraisal committee of the jurisdiction for confirmation. The labor ability appraisal committee shall, according to the industrial injury identification decision of the administrative department of human resources and social security, the diagnosis certificate of medical institutions and the classification catalogue of work stoppage and salary period of industrial injured workers in Tianjin, confirm the period of work stoppage and pay within 10 working days, issue a confirmation notice, and notify the social insurance agency and the unit where the industrial injury worker belongs. Summary: Combined with the above provisions and the search case, this paper holds that the employee due to the suspension of pay period of the objection, can obtain the relief way is relatively limited, the confirmation of the suspension of pay period generally does not fall within the scope of the court's authority. In the provinces or cities that have issued the "Administrative Measures for Work Suspension and Salary Retention of Work Injury Workers", most courts will directly determine it based on this method, but some judges believe that the court should not directly determine the period of work suspension and salary retention. For example, the (2018) E 01 Min Zhong No. 6885 judgment made by the Wuhan Intermediate people's Court holds that it is not within the scope of the people's court to confirm the suspension of work and pay period. The improper period of suspension of work and salary retention determined by the court of first instance ex officio shall be corrected. The plaintiff may claim separate rights on the confirmation of the pay period and the payment of wages. For the provinces or cities that have not issued the measures for the Administration of work stoppage and salary retention of injured workers, they can only be judged in combination with evidence materials. For example, the judgment (2020) Su 06 Min Zhong No. 2228 issued by Nantong Intermediate People's Court held that Ji Mou failed to provide other evidence to prove his claim of suspension of work and pay period except four certificates of illness. Therefore, the court of first instance confirmed that the suspension of work and pay period was not improper based on four certificates of illness. Ji Mou failed to provide evidence for his appeal claim, and the court could not support it. 4. whether the employee's work-related injury caused by the infringement of the third party, the lost work fee and the salary during the work stoppage period can be obtained at the same time. From the retrieved cases on this issue, there are two views for and against this issue: Among them, the main supporters are Changzhou Intermediate People's Court (2018) Su 04 Minzong No. 4234 Judgment, Suzhou Intermediate People's Court (2019) Su 05 Minzong No. 5577 Judgment, Dalian Intermediate People's Court (2019) Liao 02 Minzong No. 5894 Judgment, Urumqi Intermediate People's Court (2019) Xin 01 Minzong No. 2279 Judgment. This view holds that the regulations on Industrial injury Insurance do not have unlimited and prohibitive provisions on the treatment of employees during the period of work suspension, and the wages during the period of work suspension do not belong to the scope of medical expenses for work-related injuries. it is a matter borne by the employer as stipulated in the regulations on Industrial injury Insurance, and the civil liability borne by the third party cannot exempt the employer from its legal obligations. Those who oppose the above issues are Qingdao Intermediate People's Court (2019) Lu 02 Minzong No. 9382 Judgment and Shenyang Intermediate People's Court (2019) Liao 01 Minzong No. 7704 Judgment. The view is that, although wages and lost wages are based on different legal provisions, but from a substantive point of view, both are compensation for the actual reduction in income of workers who are unable to perform normal work due to injury. If the worker has received the lost work fee, the direct cost loss has been completely filled, and if the wage for the suspension period is obtained again, there is repeated compensation, which is not in line with the principle of civil compensation. Summary: Judging from the search results, local courts have not formed a unified judgment on the question of whether the lost work fee and the salary during the work-related injury caused by the infringement of the third party can be obtained at the same time. Therefore, disputes involving this issue should be judged and considered in combination with the region. This article has no theoretical elaboration, only from a practical point of view to sort out the three issues related to the suspension of pay period, if you can help colleagues in litigation or non-litigation issues encountered, the author is deeply honored.

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