[Q&A] What Should Companies Do Regarding Employees with Occupational Contraindications?
2024. 1. 12
[Q&A] What Should Companies Do Regarding Employees with Occupational Contraindications?
As a corporate law firm, we are used to answering many questions from our clients about their business in China. In this series of Q&A articles, we will discuss some of the topics that our clients have shown interest in.
[Q&A] What Should Companies Do Regarding Employees with Occupational Contraindications?
Answer: In short, the individuals in question should be transferred or temporarily removed from their original duties and appropriately reassigned.
According to Article 85, Paragraph 2 of the "People's Republic of China Occupational Disease Prevention and Treatment Law," occupational contraindications refer to unique physiological or pathological conditions that can induce diseases that pose a special risk to life or health during work processes, cause individuals to be more susceptible to occupational diseases or worsen pre-existing conditions when they engage in specific occupations or come into contact with specific occupational disease hazards.
This explanation clarifies that occupational contraindications are distinct from occupational diseases and are specific personal conditions. Moreover, different occupational contraindications correspond to different occupational restrictions. For example, pregnancy, a special physiological condition, qualifies as an occupational contraindication in toxic and hazardous work. Other commonly seen occupational contraindications include diseases accompanied by impaired lung function in dust work, heart disease and hearing loss in noisy environments.
According to Article 35, Paragraph 2 of the "Occupational Disease Prevention and Treatment Law," if an employee has an occupational contraindication, the employer must adhere to the following regulations:
1. Employers must not assign employees who have not undergone pre-employment health examinations to tasks that expose them to the hazards of occupational diseases.
2. Employers must not assign employees with occupational contraindications to tasks that involve their respective contraindications.
3. Employers must reassess the appropriate roles for employees whose occupational health examination reveals health problems related to their duties and transfer them accordingly.
4. Employers must not terminate the employment contracts of employees who have not undergone occupational health examinations before transfer.
According to Article 17, Paragraph 1 of the "Employer's Occupational Health Surveillance and Supervision and Management Measures," employers must take measures such as transferring or temporarily removing employees with occupational contraindications based on occupational health examination reports.
According to these relevant regulations, employers have an obligation to transfer employees with occupational contraindications to suitable positions. Failure to implement appropriate transfers in a timely manner can risk worsening the condition of employees, potentially leading to administrative penalties and assuming greater liability in subsequent labor disputes.
The related legal bases are as follows:
Article 75, Paragraph 7 of the "Occupational Disease Prevention and Treatment Law":
"In the event of a violation of the provisions of this Law under any of the following circumstances, the health administration department shall order a limited time for correction and impose a fine of not less than 50,000 yuan and not more than 300,000 yuan. In case of serious circumstances, the work that causes occupational disease hazards shall be ordered to stop or submitted to the relevant People's Government for closure in accordance with the authority prescribed by the State Council... (7) If an employer arranges for workers who have not undergone occupational health examinations, workers with occupational contraindications, underage workers, or pregnant or breast-feeding female employees to engage in work that exposes them to occupational disease hazards or contraindications."
Article 26, Paragraph 5 of the "Employer's Occupational Health Surveillance and Supervision and Management Measures":
"If the employer falls under any of the following circumstances, a warning shall be issued, a limited time for correction shall be ordered, and a fine of no more than 30,000 yuan may be imposed... (5) If the employer fails to take appropriate measures based on the occupational health examination."
Given the above, when discovering that an employee has an occupational contraindications, it is recommended to promptly arrange appropriate transfers to protect the employee's health and reduce risks as much as possible.
[Q&A] What Should Companies Do Regarding Employees with Occupational Contraindications?
Answer: In short, the individuals in question should be transferred or temporarily removed from their original duties and appropriately reassigned.
According to Article 85, Paragraph 2 of the "People's Republic of China Occupational Disease Prevention and Treatment Law," occupational contraindications refer to unique physiological or pathological conditions that can induce diseases that pose a special risk to life or health during work processes, cause individuals to be more susceptible to occupational diseases or worsen pre-existing conditions when they engage in specific occupations or come into contact with specific occupational disease hazards.
This explanation clarifies that occupational contraindications are distinct from occupational diseases and are specific personal conditions. Moreover, different occupational contraindications correspond to different occupational restrictions. For example, pregnancy, a special physiological condition, qualifies as an occupational contraindication in toxic and hazardous work. Other commonly seen occupational contraindications include diseases accompanied by impaired lung function in dust work, heart disease and hearing loss in noisy environments.
According to Article 35, Paragraph 2 of the "Occupational Disease Prevention and Treatment Law," if an employee has an occupational contraindication, the employer must adhere to the following regulations:
1. Employers must not assign employees who have not undergone pre-employment health examinations to tasks that expose them to the hazards of occupational diseases.
2. Employers must not assign employees with occupational contraindications to tasks that involve their respective contraindications.
3. Employers must reassess the appropriate roles for employees whose occupational health examination reveals health problems related to their duties and transfer them accordingly.
4. Employers must not terminate the employment contracts of employees who have not undergone occupational health examinations before transfer.
According to Article 17, Paragraph 1 of the "Employer's Occupational Health Surveillance and Supervision and Management Measures," employers must take measures such as transferring or temporarily removing employees with occupational contraindications based on occupational health examination reports.
According to these relevant regulations, employers have an obligation to transfer employees with occupational contraindications to suitable positions. Failure to implement appropriate transfers in a timely manner can risk worsening the condition of employees, potentially leading to administrative penalties and assuming greater liability in subsequent labor disputes.
The related legal bases are as follows:
Article 75, Paragraph 7 of the "Occupational Disease Prevention and Treatment Law":
"In the event of a violation of the provisions of this Law under any of the following circumstances, the health administration department shall order a limited time for correction and impose a fine of not less than 50,000 yuan and not more than 300,000 yuan. In case of serious circumstances, the work that causes occupational disease hazards shall be ordered to stop or submitted to the relevant People's Government for closure in accordance with the authority prescribed by the State Council... (7) If an employer arranges for workers who have not undergone occupational health examinations, workers with occupational contraindications, underage workers, or pregnant or breast-feeding female employees to engage in work that exposes them to occupational disease hazards or contraindications."
Article 26, Paragraph 5 of the "Employer's Occupational Health Surveillance and Supervision and Management Measures":
"If the employer falls under any of the following circumstances, a warning shall be issued, a limited time for correction shall be ordered, and a fine of no more than 30,000 yuan may be imposed... (5) If the employer fails to take appropriate measures based on the occupational health examination."
Given the above, when discovering that an employee has an occupational contraindications, it is recommended to promptly arrange appropriate transfers to protect the employee's health and reduce risks as much as possible.
