Recently, the State Council issued the Decision on Amending and Repealing Some Administrative Regulations, and 13 administrative regulations, including the Labor Insurance Regulations, will be repealed and will come into force on May 1, 2024.
Promulgated and implemented by the former Government Council in 1951, the Labor Insurance Regulations were the earliest social security system established for workers in mainland China, laying a solid foundation for the modern social security system. However, with the development of the times, the provisions of the "Labor Insurance Regulations" have gradually been replaced by the "Social Insurance Law", "Regulations on Work-related Injury Insurance", "Special Provisions on Labor Protection of Female Employees" and other laws and regulations, so the abolition has become an inevitable trend. The repeal of the "Labor Insurance Regulations" not only marks the continuous improvement of the mainland's social security system, but also dispels three doubts in the field of labor and employment, and clearly defines some important concepts in the handling of labor relations.
Lu Zhifeng
Director of the Legal Affairs Center of China Labor and Social Security News
Executive Editor-in-Chief of the Special Issue on Labor and Social Security Laws and Policies
01
There is a uniform standard of sick pay standards
Sick pay is the remuneration that an employee can receive for the period of absence from work due to illness or non-work-related injury.
There are two legal bases for sick pay at the national level:
01
The first is the provisions of the "Labor Insurance Regulations" and the "Draft Amendment to the Detailed Rules for the Implementation of the Labor Insurance Regulations".
2
The second is the provisions in the "Opinions on Several Issues Concerning the Implementation of the Labor Law of the People's Republic of China" issued by the Ministry of Labor [1995] No. 309.
According to the "Labor Insurance Regulations" and the "Draft Amendment to the Detailed Rules for the Implementation of the Labor Insurance Regulations", when a worker or employee ceases to work for medical treatment due to illness or non-work-related injury, and the period of medical treatment is less than 6 consecutive months, the administrative side of the enterprise or the management shall pay sickness and injury leave wages according to the length of service of the enterprise.
Among them, those who have worked in the enterprise for less than 2 years shall be 60% of their salary, those who have worked for 2 years but less than 4 years shall be 70% of their salary, those who have completed 4 years but less than 6 years shall be 80% of their salary, 90% of their wages shall be paid for those who have worked for 6 years but less than 8 years, and 100% of their wages shall be paid for those who have completed 8 years and more than 8 years.
If the period of continuous medical treatment is more than 6 months, the compensation for sickness or non-work-related injury shall be paid monthly under the labor insurance fund, and the amount shall be 40% to 60% of the employee's salary.
Among them, those who have worked in the enterprise for less than one year shall be 40% of their salary, those who have worked for one year but less than three years shall be 50% of their salary, and those who have worked for three years or more shall be 60% of their salary.
In accordance with the above
Sick pay for workers
It is determined by the length of sick leave taken by the employee and the length of service of the company
If the employee has been on sick leave for less than 6 consecutive months and the employee has worked in the enterprise for 8 years or more
Sick pay is paid at 100% of the person's salary
Article 59 of the Ministry of Labor [1995] No. 309 stipulates: "During the treatment period of an employee's illness or non-work-related injury, the enterprise shall pay the employee sick leave wages or sickness relief expenses in accordance with the relevant regulations during the prescribed medical treatment period, and the sick leave wages or sickness relief expenses may be paid lower than the local minimum wage standard, but shall not be lower than 80% of the minimum wage standard." ”
In accordance with the above
Sick pay is OK
Below the local minimum wage
But not less than 80% of the minimum wage
Since the "Regulations on Labor Insurance" is an administrative regulation, and the Ministry of Labor [1995] No. 309 is a departmental regulation. Therefore, from the perspective of the Legislation Law, the effectiveness of the Labor Insurance Regulations should be higher than that of the Ministry of Labor [1995] No. 309. However, the "Labor Insurance Regulations" was promulgated in the 50s of the last century, and the Ministry of Labor [1995] No. 309 was issued in the 90s of the last century, from the perspective of "the new law is superior to the old law", the sick pay provisions determined by the Ministry of Labor [1995] No. 309 should be applied first.
However, due to the inconsistencies in the above-mentioned legal bases, in practice, different bases are selected or referred to when different regions stipulate the standard of sick leave pay in legislation. For example
Article 21 of the Beijing Municipal Regulations on Payment of Wages stipulates that: "If an employee is sick or injured not due to work, the employer shall pay sick leave pay in accordance with the provisions of the labor contract or collective contract during the sick leave. The sick leave pay paid by the employer shall not be less than 80% of the minimum wage standard of the city. ”
Article 4 of the Interim Provisions on Sick Leave Benefits for Employees of Chongqing Enterprises stipulates that: "If an employee is sick and stops work for treatment within 6 months during the medical treatment period, his sick leave pay shall be calculated and paid according to the following methods: (1) 70% of his salary shall be paid if he has worked continuously for less than 10 years; (2) if he has worked continuously for 10 years but less than 20 years, he shall be paid 80% of his salary; (3) if he has worked for 20 years but less than 30 years, he shall be paid 90% of his salary; (4) Those who have worked continuously for 30 years or more shall be paid 95% of their salary. ”
From the above provisions, it can be seen that the provisions of Beijing Municipality are in line with the spirit of the provisions of [1995] No. 309, and the regulations of Chongqing Municipality refer to the Regulations on Labor Insurance.
After the repeal of the Labor Insurance Regulations, the provisions of the Ministry of Labor [1995] No. 309 on the standard of sick leave pay have become the only legal basis at the national level. Unless otherwise specified by the local government, the standard of sick pay is not less than 80% of the minimum wage.
2
"Funeral Grant" completely replaces "Funeral Grant"
Paragraph B of Article 14 of the Regulations on Labor Insurance stipulates that: "In the event of the death of a worker or employee due to illness or non-work-related injury, a funeral subsidy shall be paid under the labor insurance fund, the amount of which shall be two months' average salary of all workers and employees of the enterprise." ”
According to Article 7 of the Labor Insurance Regulations, which stipulates that "all the labor insurance expenses stipulated in these Regulations shall be borne by the administrative side or the management of the enterprise implementing labor insurance, part of which shall be paid directly by the administrative side of the enterprise or the employer, and the other part shall be paid by the administrative side or the management of the enterprise and handed over to the trade union organization for handling", the expenses under the labor insurance fund shall be borne by the employer.
therefore
In accordance with the provisions of the Labor Insurance Regulations
The worker dies due to illness or non-work-related reasons
The employer shall pay
2 months' salary
As a funeral subsidy
The Ministry of Human Resources and Social Security issued [2021] No. 18 "Interim Measures for the Treatment of the Survivors of the Basic Pension Insurance for Enterprise Employees" stipulates that if a person who participates in the basic pension insurance for employees of an enterprise dies due to illness or non-work-related reasons, his or her surviving family members can receive a funeral subsidy. The standard of funeral subsidy shall be calculated according to twice the monthly per capita disposable income of urban residents in the province (including autonomous regions and municipalities directly under the Central Government) in the previous year at the time of the death of the insured person;
Accordingly
The worker dies due to illness or non-work-related reasons
The social insurance agency shall be from the basic pension insurance fund for employees of the enterprise
Payment to their surviving dependents
Funeral grants
In practice, there are indeed differences as to whether the funeral subsidy and the funeral subsidy can be enjoyed at the same time when the employer participates in social insurance in accordance with the law, or whether the funeral subsidy replaces the funeral subsidy? Of course, after the repeal of the Labor Insurance Regulations, the funeral allowance will completely replace the funeral allowance, and the reference to the payment of the funeral allowance will no longer exist.
03
The "double enjoyment theory" has lost its legal basis
According to the provisions of the "Labor Insurance Regulations" and the "Draft Amendment to the Detailed Rules for the Implementation of the Labor Insurance Regulations", when a worker or employee dies due to illness or non-work-related injury, the labor insurance fund shall pay relief expenses for supporting immediate family members, the amount of which is 6 months to 12 months' wages of the deceased. Among them, if one immediate family member is supported, the amount shall be 6 months' salary of the deceased, 9 months' salary for the deceased if he supports 2 members of the immediate family, and 12 months' salary for the deceased if he supports 3 or more members of the immediate family.
Other words
Due to the provisions of the Labor Insurance Regulations
Expenses under the Labor Insurance Fund
It shall be borne by the employer
The employer shall:
Supporting immediate family members of deceased employees
Payment of relief fees
The "Interim Measures for the Treatment of the Survivors of the Basic Pension Insurance for Employees of Enterprises" stipulates that if an employee dies during his or her employment, his or her survivors can enjoy a pension.
The pension shall be based on the monthly per capita disposable income of urban residents in the province in the previous year at the time of the employee's death, and the number of months shall be determined according to the number of years of payment (including the actual payment period and the deemed payment period).
Among them, if the payment period is less than 5 years, the number of months is 3 months, if the payment period is 5 years but less than 10 years, the number of months is 6 months, if the payment period is 10 years but not more than 15 years (including 15 years), the number of months is 9 months, and if the payment period is more than 15 years, the number of payment months will be increased by 1 month for each additional year.
If the payment period is more than 30 years, it shall be calculated according to 30 years, and the maximum number of months shall be 24 months;
In fact, the idea that "the pension of employees' pension insurance replaces the relief fee for supporting immediate family members" has appeared when the "Interim Measures for the Treatment of the Survivors of the Basic Pension Insurance for Enterprise Employees" was implemented.
However, from the perspective of focusing on the protection of workers' rights and interests, there are still views that adhere to the "double enjoyment theory", that is, the pension insurance of employees and the relief expenses for supporting immediate family members can be enjoyed at the same time.
Repeal of the Labor Insurance Regulations
From the legal roots
This argument is eliminated
Employers who participate in insurance in accordance with the law are exempted from the obligation to pay relief expenses for supporting their immediate family members