What Is Sick Pay?

People inevitably have headaches and brain heat. When they are sick, they cannot continue to work on the job due to physical reasons. They need to take sick leave to rest. During the sick leave, because the employees are not at work, their wages are not paid according to actual calculations. Wages are paid according to a certain standard.

Sick leave pay

Inevitably

Remuneration available to employees during periods of absence due to illness or disability.

The calculation of sick leave pay must first determine two variables, one is the calculation base of sick leave pay, and the other is the calculation coefficient of sick leave pay.

1. The base for sick leave pay is determined according to the following three principles:

(1) If there is an agreement in the labor contract, it shall be determined according to the salary standard corresponding to the position (position) of the employee in the labor contract. Collective contracts (wage collective agreements) set standards higher than the labor contract standards, the collective contract (wage collective agreement) standards.

(2) If neither the labor contract nor the collective contract is agreed upon, the employer and the employee representative can determine it through collective wage negotiations. The result of the negotiation shall be a collective wage agreement.

(3) If there is no agreement between the employer and the worker, the calculation base of the holiday pay shall be uniformly determined at 70% of the monthly salary of the employee's normal attendance at the post (position). In addition, the holiday wage base calculated according to the above three principles must not be lower than the minimum wage standard prescribed by this Municipality. ^[1]

Regarding the treatment of sick leave, two points need to be paid attention to, that is, the minimum guarantee standard and the ceiling standard for sick leave pay.

1. Guaranteed minimum standard for sick leave pay-mandatory standard

According to the Shanghai Municipal Labor Bureau's "Notice on Strengthening the Management of Illness Leave of Employees in Enterprises and Ensuring Employees' Life During Illness Leave" and the Shanghai Labor and Social Security Bureau's "Notice on the Minimum Standards of Illness Payment and Illness Relief for Employees in this City" It is stipulated that if the monthly employee sickness or non-work-related injury leave is less than 40% of the average monthly salary of the enterprise, it shall be supplemented to 40% of the average monthly salary of the enterprise, but shall not be higher than the original wage level of the enterprise or higher than the city The average monthly salary of employees in the previous year. 40% of the average monthly salary of the enterprise is lower than 80% of the minimum wage standard for the employees of the city in the current year, which shall be made up to 80% of the minimum wage standard for the employees of the city in the current year. The minimum standard of sick leave pay or sickness relief for employees of enterprises does not include pension, medical care, unemployment insurance premiums and housing provident funds that should be paid by employees.

2. Capping standard for sick pay-non-mandatory

According to Article 5 of the Shanghai Municipal Labor Bureau's Notice on Strengthening the Management of Illness Leave for Employees of Enterprises and Ensuring Employees' Life During Illness Leave (Shanghai Labor Insurance [1995] No. 83), the employee's illness or non-work-related injury treatment is higher than the previous year in this city The monthly average salary may be calculated based on the monthly average salary of the previous year in this city. ^[2]

Payment standard

1. During the treatment of sick or non-work-related injuries of employees, during the prescribed medical period, the enterprise shall pay their sick leave wages or sickness relief costs in accordance with relevant regulations. Sick leave wages or sickness relief costs may be paid below the local minimum wage standard, but cannot 80% below the minimum wage.

2. Except in the circumstances stipulated in Article 25 of the Labor Law, the employer shall not terminate the labor contract when the labor period expires during the medical period, pregnancy, childbirth and breastfeeding period. The term of the labor contract shall automatically extend until the expiration of the medical period, pregnancy, childbirth and lactation.

3. Employees with long sick leave can continue to perform the labor contract if they can perform the original work after the expiration of the medical period; if they are still unable to engage in the original work or work arranged by the unit after the expiration of the medical period, the labor appraisal committee shall refer to Workability appraisal shall be made according to the appraisal standards of the degree of disability of work injury and occupational disease. Those who are identified as Levels 1 to 4 shall withdraw from the employment, terminate the labor relationship, go through the procedures for retirement due to illness or non-work injury, and enjoy the corresponding retirement benefits; if they are identified as Levels 5 to 10, the employer may terminate the labor Contract, and pay financial compensation and medical assistance in accordance with regulations.

4. The "minimum wage" in Article 48 of the Labor Law refers to the minimum labor remuneration to be paid by the unit where the employee has performed normal labor obligations within the legal working hours. The minimum wage does not include remuneration for extended working hours, housing and food subsidies paid by employers, middle shift, night shift, high temperature, low temperature, underground, toxic, harmful and other special working environment and labor conditions, Social insurance benefits provided by national laws, regulations and rules.

5. If the employee is ill or not injured due to work, and the labor contract is terminated by the labor appraisal committee after confirming that he cannot engage in the original work or work arranged separately by the employer, the employer shall pay according to its working life in the unit. One year's worth of financial compensation is equivalent to one month's salary. At the same time, a medical subsidy of not less than six months' salary should also be paid. For those who are seriously ill and terminally ill, the medical subsidy fee shall be increased. The increase in severe ill shall not be less than 50% of the medical subsidy and the increase in terminally ill shall not be lower than 100% of the medical subsidy. ^[3]

How should I pay for sick leave?

There are two regulations on the payment of sick leave pay for enterprise employees at the national level. The first is the "Labor Insurance Regulations of the People's Republic of China" promulgated by the former State Council (adopted at the 73rd Session of the Government Council on February 23, 1951, and announced on February 26, 1951, The Labor Insurance Regulations are hereinafter referred to, and the "Draft Amendments to the Implementation Regulations of the Labor Insurance Regulations of the People's Republic of China" promulgated by the former Ministry of Labor (promulgated by the Ministry of Labor on January 26, 1953 for trial implementation, hereinafter referred to as Implementation Regulations). The second is the Notice of the Ministry of Labor on Printing and Distributing the "Opinions on the Implementation of the" Labor Law of the People's Republic of China "" (Ministry of Labor [1995] No. 309, hereinafter referred to as a number of issues). In practice, there are different understandings of these two regulations, leading many colleagues to not know exactly how to pay sick leave. Next, let's talk about how to pay sick leave pay from the scope of application.

First, the scope of application of both

(1) Scope of the Labor Insurance Regulations (Article 2 of the Labor Insurance Regulations):

"A. State-owned, public-private partnerships, private and cooperatives operated factories, mines and their affiliated units and business management agencies with more than one hundred employees."

"B, railway, shipping, post and telecommunications enterprises and subsidiary units."

The implementation rules provide a more specific explanation:

"The Labor Insurance Regulations of the People's Republic of China (hereinafter referred to as the" Labor Insurance Regulations "), Article 2A," there are more than 100 workers and employees, "refers to the number of workers and employees in factories and mines, their business management agencies and The number of affiliated units is not included. In calculating the number of people, wage system, supply system personnel and apprentices, temporary workers (except temporary construction workers and porters), and probationers should be included. "

(2) Several questions and opinions are aimed at the labor law promulgated at that time, and their scope of application is:

Article 2 of the Labor Law

"This Law applies to enterprises, individual economic organizations (collectively referred to as employers) within the territory of the People's Republic of China, and workers who form labor relations with them."

"State agencies, institutions, social organizations and workers who establish labor contract relationships with them shall implement this Law."

Several questions have been further explained:
1. The "individual economic organization" in Article 2 of the Labor Law refers to individual industrial and commercial households with generally less than seven employees.
2. As long as a labor relationship is formed between an enterprise, an individual economic organization, and a worker in China, the worker has actually become a member of the enterprise and an individual economic organization and provides paid labor to it. Labor laws apply.
3 State agencies, public organizations, and social organizations that implement the labor contract system and workers who should implement the labor contract system in accordance with regulations; personnel of enterprise organizations that implement enterprise-oriented management; other establishments with state agencies, public organizations, and social organizations through labor contracts Workers in labor relations shall apply the labor law.
4 Labor laws are not applicable to civil servants, workers of public organizations and social organizations that follow the civil service system, and rural workers (except for township and village enterprise employees, migrant workers, and business peasants), active duty military personnel, and family nanny.
5. Enterprises and individual economic organizations in China are referred to as employers in the labor law. State organs, public organizations, social organizations, and workers who establish labor contract relationships with them shall implement labor laws. According to this provision of the Labor Law, state organs, public organizations, and social organizations should be regarded as employers.

Judging from the above provisions, the scope of application of the labor law and certain issues and opinions is more than that of the labor insurance regulations and its implementing rules. Individual economic organizations do not exist, so the regulations do not provide for this. Second, the main business entities at that time were mainly factories. And mines, the service industry generally exists as a subsidiary of factories and mines, and now the service industry as a third industry is applicable. The main manifestations are as follows: 1. At the time of the introduction of the labor insurance regulations, there were no foreign-funded enterprises, joint ventures, joint ventures, etc., and there were no clear regulations. Third, the number of people was required. Except for the railway, shipping, post and telecommunications enterprises and their subsidiary units, When there are only 100 or more people in factories and mines, labor insurance regulations apply.

Therefore, whether an enterprise pays sick leave pay in accordance with 60% -100% of the labor insurance regulations and its implementing rules, or whether it pays sick leave pay at a rate not lower than 80% of the minimum wage stipulated in certain questions and opinions depends on the applicable laws of the enterprise Provisions cannot be generalized.

It should also be noted that, according to the legal effect provided by the Legislative Law, the labor insurance regulations issued by the former Government Affairs Office are more effective than the original Ministry of Labor s interpretation of the labor law (several questions and opinions). When both regulations apply to an enterprise, I personally believe that the provisions of the Labor Insurance Regulations and the detailed rules for their implementation shall apply.