The Decision of the State Council on Amending and Repealing Some Administrative Regulations was promulgated and will come into force on May 1, 2024.
It was decided to repeal 13 administrative regulations, including the Regulations of the People's Republic of China on Labor Insurance (promulgated by the Government Council on February 26, 1951 and amended and promulgated by the Government Council on January 2, 1953), and amended some provisions of the eight administrative regulations.
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 in the draft amendments to the Labor Insurance Regulations and the Detailed Rules for the Implementation of the Labor Insurance Regulations.
2
The second is the provisions of the "Opinions on Several Issues Concerning the Implementation of the Labor Law of the People's Republic of China" (Lao Bu Fa [1995] No. 309).
According to the draft amendment to the Labor Insurance Regulations and 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 suspension of work for medical treatment is less than 6 consecutive months, the administrative side of the enterprise or the employer shall pay sickness and injury leave wages according to the length of service of the enterprise.
In accordance with the above
Sick pay for workers
Based on the continuous length of sick leave taken by the employee
and the length of service in the enterprise
If the employee is on sick leave for less than 6 consecutive months
and the worker has worked in the enterprise for at least 8 years
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 labor insurance regulations are administrative regulations, the Ministry of Labor [1995] No. 309 is a departmental regulation. Therefore, from the perspective of the Legislation Law, the effect of the Labor Insurance Regulations should be higher than that of the Ministry of Labor [1995] No. 309. However, the labor insurance regulations were promulgated in the 50s of the last century, and the Ministry of Labor issued [1995] No. 309 in the 90s of the last century, from the perspective of "the new law is superior to the old law", the provisions on sick leave pay 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.
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 Labor Insurance Regulations 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 expenses of labor insurance 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 of the enterprise or the employer 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 "Interim Measures for the Treatment of the Survivors of the Basic Pension Insurance for Enterprise Employees" (Ministry of Human Resources and Social Security [2021] No. 18) 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 amendments 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 shall be 6 months to 12 months' wages of the deceased.
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).
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.
The repeal of the Labor Insurance Regulations eliminates this controversy from the legal roots, and exempts legally insured employers from the obligation to pay relief expenses for supporting their immediate family members.
Source: Chinese government website, Ministry of Human Resources and Social Security, China Labor and Social Security News, etc