On March 1, 2023, the Supreme People's Court issued the third batch of typical civil cases in which people's courts vigorously promote socialist core values, the "Labor Dispute Case between Mr. Li and an e-commerce enterprise", advocating that enterprises should reasonably assume the social responsibility of filial piety and respect for the elderly, appropriately accommodate and encourage employees' filial behavior of caring for their parents, provide convenience for asking for leave, and reflect the core value of "workplace friendliness.".

In practice, enterprises are faced with issues such as whether it is necessary to approve the leave, how long it can be arranged, how to arrange the leave, and whether employees who leave without permission or fail to return after the expiration of the time limit can be counted as absenteeism when they ask for leave due to the serious illness of their parents and children.

After searching relevant cases in the past five years, it has been learned that when employees ask for leave based on the serious illness of their parents and children, as long as they normally apply for leave and provide corresponding materials, most courts adopt a tolerant attitude towards the employee union. Even if there are defects in the employee's leave procedures, the court will determine that it is illegal for enterprises to directly terminate the employee's absenteeism.

However, the court may determine that an employee's behavior is absenteeism under the following circumstances:

(1) Unable to produce evidence that the relative is truly seriously ill, that is, the reason for asking for leave is untrue;

(2) Leaving the post for a long time without asking for leave from the enterprise, and failing to actively inform the enterprise of the situation in a timely manner after leaving the post, even in a state of loss of contact.

So what should enterprises do to meet the requirements of socialist core values, comply with the national culture of filial piety, fully reflect workplace friendliness, and reduce the risk of being identified as illegal termination of labor contracts?

1、 Clear rules and regulations should be established for the leave process and corresponding handling measures

An enterprise should first have a clear system basis, which should include clear requirements for the leave process and approval process (including general and emergency situations), leave restrictions, treatment during the leave, and attendance system. It should also establish corresponding punishment provisions for employees who fail to take leave according to the process, especially for the situation of "absenteeism". The system should also specify situations that constitute "serious violations of rules and regulations", providing a basis for the punishment of employees who fail to take leave or are absent from work in accordance with regulations.

This system must be formulated through the democratic procedures stipulated in Article 4 of the "Labor Contract Law of the People's Republic of China", and has been publicly notified to employees to ensure its legality and effectiveness.

2、 Enterprises need to verify the reasons for employees' leave

When an employee requests that their parents and children become seriously ill and require leave, the enterprise should require the employee to provide corresponding proof of kinship (generally referring to parents, spouse's parents, and children), as well as proof of serious illness and hospitalization. If the incident is urgent, those that can be supplemented after the leave should also be recognized. If an employee is unable to provide or refuses to provide proof of the severity of a relative's illness from beginning to end, the enterprise can, after several reminders, determine the nature of their behavior in accordance with rules and regulations, and conduct subsequent processing.

3、 Application for leave and precautions during leave

（1） Leave Type and Days

The specific number of days of leave approved by an enterprise can be comprehensively considered based on actual business needs, work arrangements, and the family situation of the employees, but the obligation to review and take care of the employees should be fulfilled.

The types of leave that employees may apply for include annual leave, personal leave, and overtime compensatory leave. In some regions, as stipulated by Beijing, [1] only children have nursing leave of no more than 10 working days per year.

In the case of an employee whose parents are seriously ill, if the employee is an only child, the enterprise should approve the employee to take nursing leave. If the employee is not an only child, the enterprise can approve the employee to take personal leave with reference to the number of days of only child nursing leave. If employees have not taken annual leave or overtime compensatory leave, the enterprise can also give priority to arranging employees to take these two types of leave.

（2） Treatment of overdue leave

Even if an employee fails to return to work on time at the end of the vacation, the enterprise should not directly consider absenteeism, but should fully understand the reasons for not returning to work, paying particular attention to whether there are critical illness, death, distant travel, and other situations of the employee's relatives. If an enterprise fully demonstrates its care for employees when approving holidays, the court will also consider the goodwill of the enterprise when the enterprise terminates the labor contract on the grounds of absenteeism due to employees' non-compliance with the enterprise's holiday system. For example, in the (2018) Jing 0102 Min Chu No. 14803 case, the employee did not return to work or contact the enterprise within 7 days after the expiration of the annual leave, personal leave, or nursing leave applied for, and there was no response to the enterprise's inquiry. Finally, the enterprise terminated its labor relationship on the grounds of absenteeism, and the court determined that the enterprise's termination was legal.

（3） If the application for leave is too long, consider terminating the labor contract through consultation with the employee

If an employee applies for too long a vacation, or it is temporarily impossible to determine the time to return to work, the enterprise may consider terminating the labor contract through consultation with the employee, signing a labor contract termination agreement, making clear agreements on salary payment and social security payment, as well as subsequent processing measures upon expiration of the agreement, This includes returning to the enterprise to resume the performance of the original labor contract, or the enterprise making a decision on whether to terminate it, or both parties negotiating to handle the original labor relationship.

Currently, in some regions, there are clear regulations on such situations of suspension of labor contracts, such as Articles 23 and 24 of the Regulations on Labor Contracts in Shanxi Province [2]; Although Beijing has not explicitly stipulated "suspension of labor contracts", judicial practice does not negate the effectiveness of the labor contract suspension agreement [3]. It should be noted that during the suspension period of a labor contract, if the labor contract is to be terminated, it is still necessary to comply with relevant regulations such as the Labor Contract Law of the People's Republic of China.

To sum up, when enterprises are faced with employees' requests for leave due to the serious illness of their parents and children, they should provide appropriate goodwill and tolerance, approve reasonable leave based on the actual situation, or take other reasonable measures through consultation with the employees. In addition, they should be more cautious in handling the situation where employees fail to return to work on schedule, thereby reducing the risk of being deemed illegal in terminating labor contracts.

References and Notes:

[1] According to the second paragraph of Article 25 of the Beijing Population and Family Planning Regulations, if the parents of an only child need nursing care, the only child will receive nursing leave of no more than ten working days per year
[2] Regulations of Shanxi Province on Labor Contracts
Article 23 The employer and the employee may terminate the performance of the labor contract upon consensus through consultation.
During the period of suspension of the performance of the labor contract, both the employer and the worker shall suspend the performance of the relevant rights and obligations of the labor contract.
Article 24 If the performance of a labor contract is suspended through negotiation, both parties shall agree in writing on the time limit or conditions for resuming the performance of the labor contract.
The period during which the performance of a labor contract is suspended shall not be included in the length of service of the employee with the employer.
The situation of suspending the performance of a labor contract disappears, and the performance of the labor contract shall be resumed, except that the labor contract cannot be performed.
[3] (2017) Jing Min Shen No. 4168 Civil Judgment, (2021) Jing 02 Min Zhong No. 10165 Civil Judgment