Viewpoint... A brief analysis of the long-term sick leave of state-owned enterprises requires the resumption of work and the problem of internal retirement.
Published:
2023-12-25
Some long-term sick leave personnel will first require to return to work and then apply for internal withdrawal procedures according to their positions after returning to work when approaching the internal withdrawal conditions of their units. However, with the adjustment of the units, some long-term sick leave personnel no longer exist or do not meet the requirements of the units for internal withdrawal positions. This paper makes some discussions on this issue based on individual cases encountered in the previous period.
Content Summary
Long-term sick leave personnel are not uncommon in state-owned enterprises. Some long-term sick leave personnel will first require them to return to work and then apply for internal retirement procedures according to their positions after returning to work. However, with the adjustment of the unit, the positions of some long-term sick leave personnel no longer exist or do not meet the requirements of the unit for internal retirement positions. This paper discusses this problem based on individual cases encountered in the previous period.
Keywords: long-term sick leave personnel return to work fixed post internal retirement
In the process of providing legal services for state-owned enterprises, it is found that long-term sick leave personnel exist more or less in many state-owned enterprises. The personnel department of state-owned enterprises generally has a headache for the management of this part of personnel. According to the cases contacted by the author, this paper makes a simple discussion on the matters concerning the long-term sick leave personnel's request to return to work, appointment and retirement.
A brief case
In a state-owned enterprise that the author serves, several employees in the early days took long-term sick leave with the approval of the unit due to illness. Later, as the age of the relevant long-term sick leave personnel increased, some long-term sick leave employees gradually asked the unit to resume work and settle their posts and go through the company's internal retirement procedures in order to withdraw from their posts for recuperation.
According to the regulations of the internal rules and regulations of the state-owned enterprise, when handling the internal retirement procedures, there should be a clear post and the internal retirement treatment should be determined according to the post. The long-term sick leave employees already have corresponding employees in their original posts due to long-term leave. The long-term sick leave employees no longer have the specific posts required by the company. Now, after they put forward the requirements of handling the internal retirement procedures after returning from work, the labor and personnel department of the unit consulted the author on how to return to work for several long-term sick employees and whether they should be supported to go through the internal retirement procedures.
Two related legal analysis
Relevant provisions of the (I) on the transfer of sick and injured employees to long-term sick leave
The former Ministry of Labor, the former Economic and Trade Office of the State Council, the former Ministry of Health, the former State Administration for Industry and Commerce and the All-China Federation of Trade Unions issued the "Notice on Strengthening the Management of Long-term Leave for Injuries and Injuries" (Labor Insurance Zi [1992] No. 14, hereinafter referred to as "Long-term Leave Management Notice") in Article (II): "If sick and injured employees need to be transferred to long-term leave, according to the disease diagnosis certificate issued by the enterprise medical institutions or sick, the appraisal shall be made by the enterprise labor appraisal committee (group) and shall be subject to the administrative approval of the enterprise." After searching, Shandong Province has not issued the "Long Break Management Notice" related to the landing policy provisions.
Relevant provisions of the (II) on the management of long-term sick persons
There are also relevant provisions in relevant laws and regulations on how to strengthen the management of long-term sick persons in various enterprises. Articles (II) and (III) of the Notice on Strengthening the Management of Employers' Long-term Leave for Injuries (Labor Insurance Zi [1992] No. 14) stipulate: "A system of regular home visits shall be established to keep abreast of changes in the injury, illness and disability of employees on long-term leave, and timely notify employees who have recovered their labor capacity to resume work on time; according to the recovery of labor capacity, a certain trial period shall be arranged or appropriate work shall be changed; it is necessary to strengthen the labor discipline of enterprises, and those who do not return to work within the time limit or do not obey the work arrangement may stop issuing injury and illness insurance benefits and deal with them according to absenteeism." Enterprises should regularly carry out labor appraisal for long-term employees and realistically arrange for employees to rest, treat, return to work or change jobs. It is necessary to establish and preserve the work injury and health records of employees, and formulate strict appraisal procedures and systems. "Enterprises can refer to this provision to do a good job in the management of long-term sick persons.
Relevant provisions of the (III) on the expiration of medical treatment for employees on long-term sick leave
On implementation<中华人民共和国劳动法>Article 35 of the opinions on several issues stipulates that if an employee who takes a long sick leave can engage in the original work after the expiration of the medical treatment period, he can continue to perform the labor contract; if he is still unable to engage in the original work or work separately arranged by the unit after the expiration of the medical treatment period, the labor appraisal committee shall conduct the labor ability appraisal with reference to the appraisal standard of the degree of disability caused by industrial injury and occupational disease. If it is identified as one to four levels, it shall withdraw from the labor post, terminate the labor relationship, go through the procedures for retirement due to illness or non-work-related injury, and enjoy the corresponding retirement and resignation benefits; if it is identified as five to ten levels, the employer may terminate the labor contract and pay economic compensation and medical subsidies in accordance with the regulations.
According to the provisions of Article 40 of the Labor Contract Law, for workers who are sick or not injured at work, after the prescribed medical treatment period expires, they cannot engage in the original work, nor can they engage in the work separately arranged by the employer. The unit may terminate the labor relationship after 30 days' notice or payment of the payment.
According to the above provisions, long-term sick leave personnel return to their original posts in principle to engage in the original work to perform the original labor contract; If they are not competent for the original work, the company shall arrange the work separately. If they cannot engage in the original work or the work separately arranged by the unit, they shall be appraised of their labor ability and handled separately according to the appraisal results.
Relevant regulations of the (IV) on handling internal retirement after returning to work for long-term sick leave
(Original) The Ministry of Labor's "Notice on Strictly Grasping the Retirement Conditions of Enterprise Employees" stipulates that "Enterprises should properly arrange employees who are close to the retirement age. If they cannot adhere to normal production work due to old age and infirmity, they can leave their posts and retire. The length of service during the period of retirement is calculated continuously, and wages are paid according to a certain proportion, and the expenses required are still included in the wage fund. When the retired employees reach the retirement age, they will formally go through the retirement procedures in accordance with the relevant provisions of the state and issue a retirement fee." Article 9 of the "Regulations on the Placement of Surplus Employees in State-owned Enterprises" stipulates that "Employees who are less than five years away from retirement age may withdraw from their jobs for recuperation upon their own application and approval by the leaders of the enterprise. During the period of rest and recuperation after leaving their jobs, the enterprise shall pay them living expenses. Where the overall planning of retirement expenses has been implemented, enterprises and employees who have quit their jobs to recuperate shall pay basic old-age insurance premiums in accordance with relevant regulations. When an employee reaches the retirement age set by the State during the period of rest and recuperation after quitting his or her post, he or she shall go through the retirement formalities in accordance with the regulations. The period during which the employee quits the job and recuperates is regarded as the length of service, which is calculated in combination with the previous length of service." Article 11 stipulates that "the living expenses paid in accordance with the provisions of Articles 8 and 9 of these regulations shall be disbursed from the enterprise's wage fund, and the standard of living expenses shall be determined by the enterprise itself, but shall not be lower than the minimum standard set by the people's government of the province, autonomous region and municipality directly under the municipality".
According to the above provisions, the internal retirement system, as a form of internal labor management for surplus employees of state-owned enterprises to withdraw from their jobs for recuperation, is an internal management system of the enterprise. Under the condition of not violating the relevant mandatory provisions, the enterprise has the right to refine the implementation rules of the relevant system. Under normal circumstances, I need to apply for internal retirement, and it should go through the approval process of the enterprise.
Three related treatment suggestions
According to the provisions of relevant laws and regulations, the author believes that the unit should be dealt with separately according to the actual situation of each long-term sick leave:
After the expiration of the (I) medical treatment period, relevant employees shall be first arranged to work in their original positions; if they are not competent for the original positions, they shall be arranged separately.
After the medical treatment period of the sick leave employee expires, if the employee is able to engage in the original job according to his physical condition, the unit can arrange him to return to the original job and continue to perform the labor contract; if the employee is unable to work in the original job according to his physical condition, or the original job does not exist, the unit can adjust the job according to the actual situation of the employee and arrange another job, and change the labor contract with the employee accordingly. It is necessary to pay attention to the rationality of post transfer. First, the transferred post should be suitable for the physical condition of the workers; second, if the salary and treatment of the transferred post is quite different from that of the original post, try to reach a consensus with the workers.
(II), if the employee is still incompetent after adjusting the job position, it is necessary to determine the termination of the contract or retire/leave according to the conclusion of the labor ability appraisal.job formalities.
According to Article 40 of the Labor Contract Law and the Law on Implementation<中华人民共和国劳动法>According to the relevant provisions of Article 35 of the opinions on several issues, if a worker is ill or injured not due to work, and cannot engage in the original work or the work separately arranged by the employing unit after the expiration of the prescribed medical treatment period, the labor ability appraisal shall be carried out. If the appraisal is grade 1 to grade 4, the unit shall cooperate with him to go through the retirement formalities; if the appraisal is grade 5 to 10, the unit may terminate the labor contract and pay economic compensation and medical subsidies.
(III), if the long-term sick leave personnel have met the conditions for retirement, they can withdraw from their posts for recuperation according to regulations upon application.
According to Article 9 of the "Regulations on the Placement of Surplus Employees in State-owned Enterprises" (Order No. 111 of the State Council): "Employees who are less than five years away from retirement age may withdraw from their jobs for recuperation upon their application and approval by the leaders of the enterprise." According to this regulation, upon my application and the approval of the enterprise leaders, I can go through the internal retirement procedures and enjoy the internal retirement treatment. It is not clear whether the resumption of post after long-term sick leave will affect the internal retirement of employees. In view of the fact that the internal retirement system is the company's internal management regulations, if the employer refines the conditions for internal retirement that does not violate the mandatory provisions of laws and regulations, it is formulated through democratic procedures and publicized to the workers, it should be followed.
Four Conclusion
Through the above analysis, the author thinks that the main problem involved in the long-term sick leave who requires to return to work is actually the post adjustment. According to the provisions of relevant laws and regulations, the long-term sick leave who requires to return to work should first arrange the relevant employees to work in the original post. If they are not competent for the original post, they should arrange another post, and they are still incompetent after adjusting the post, the termination of the contract or retirement/resignation procedures shall be determined according to the conclusion of the labor capacity appraisal. As for those who require to go through the internal retirement procedures after returning to work, since the internal retirement system is an internal management regulation of the company, and can only be handled after the application is submitted by the laborer and approved by the enterprise, if the internal retirement system of the unit does not violate the mandatory provisions of laws and regulations and is formulated through democratic procedures and publicized to the laborer, the relevant provisions of the company's internal retirement system can be applied to judge whether to allow the relevant long-term sick leave personnel to go through the internal retirement procedures.
Key words:
Long-term sick leave personnel, return to work, fixed post, internal retirement
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