Legal Rights of a Foreign Teacher on Medical Leave in China

Legal Rights of a Foreign Teacher on Medical Leave in China

As a lawyer specializing in Chinese labor law, I would like to clarify the legal rights of a foreign teacher who requires medical leave after surgery and faces potential job reassignment or termination by their school，as a reply to one of our client's inquiry. Below is an analysis of the teacher's rights under Chinese law and the potential violations by the employer.  

1. Right to Medical Leave and Protected Medical Period

Under Article 3 of the Regulations on the Medical Period for Enterprise Employees with Illness or Non-Work-Related Injuries (《企业职工患病或非因工负伤医疗期规定》（劳部发〔1994〕479号), employees are entitled to a medical period (医疗期)based on their years of service:  

* 3-24 months depending on seniority. 

* During this period, the employer cannot terminate the contract unless the employee commits serious misconduct (Article 42(3) of the Labor Contract Law).

The school cannot force the teacher to change positions or terminate the contract simply because of medical leave, as this violates Article 40(1) of the Labor Contract Law, which only allows termination after the medical period expires and only if the employee cannot resume work or accept a reasonable alternative position. 

2. Unlawful Forced Job Reassignment

If the school insists on changing the teacher's position: 

* The teacher must consent to any job transfer unless the original position is objectively impossible (Article 35 of the Labor Contract Law). 

* If the reassignment is punitive (e.g., lower pay, unreasonable duties), it may constitute constructive dismissal, allowing the teacher to claim compensation (Article 38 of the Labor Contract Law). 

3. Illegal Termination and Compensation Rights

If the school terminates the contract during the medical period, it is illegal under Article 42(3) of the Labor Contract Law. The teacher can: 

* Demand reinstatement or double severance pay (2 × years of service × monthly wage)under Article 87. 

* Claim unpaid sick leave wages(at least 80% of local minimum wage, per Article 59 of the Implementation Opinions on the Labor Law (劳部发〔1995〕309号).  

4. Employer's Wrongful Actions

The school is violating labor law if it: 

* Pressures the teacher to resign instead of respecting medical leave. 

* Terminates or reassigns without consent before the medical period ends. 

* Fails to pay sick leave wages during the recovery period. 

5. Recommended Actions

The teacher should: 

1. Submit formal medical certificates(from a registered hospital). 

2. Refuse unlawful termination/reassignment in writing. 

3. File a complaint with the local labor bureau or initiate arbitration if the school proceeds with illegal actions. 

Conclusion

The school's actions—pressuring the teacher to change jobs or terminate early—are unlawful. The teacher has strong legal protections under Chinese labor law and should assert their rights to medical leave, proper sick pay, and job security. If the school proceeds with termination, the teacher can successfully challenge it in arbitration/court and claim compensation. 

Related Provisions in Labor contract law

Article 40 

Where one of the following circumstances occurs, the employer may terminate the labor contract by giving the employee a written notice 30 days in advance or paying an additional one month's salary:

1. The employee, after falling ill or suffering a non-work-related injury, is unable to perform the original job nor any other job arranged by the employer upon the expiration of the specified medical period; 

2. The employee is incompetent for the job, and remains incompetent after training or adjustment of the work post.

…

Article 42 

Under any of the following circumstances, the employer shall not terminate the labor contract in accordance with the provisions of Articles 40 and 41 of this Law: 

…

2. The employee has contracted an occupational disease or suffered a work-related injury in the unit and has been confirmed to have lost or partially lost work capacity; 

3. The employee is ill or has suffered a non-work-related injury and is within the specified medical period; 

4. The female employee is in the孕期 (pregnancy period),产期 (childbirth period), or哺乳期 (lactation period).

For further legal action, the teacher should consult a labor lawyer or contact the local Labor Arbitration Committee.