Question raised

Company A is a chemical enterprise with many occupational hazards in the workplace. More than 100 employees who have established labor relations with Company A are engaged in operations that involve exposure to occupational hazards. Due to operating losses, Company A has decided to dissolve early on March 31, 2024 (hereinafter referred to as the "dissolution date") and terminate labor relations with all employees on the dissolution date. In early February 2024, Company A organized pre departure occupational health examinations for employees engaged in operations exposed to occupational hazards. The results showed that one person was "suspected of having an occupational disease", five people were "re examined", three people had "occupational contraindications", and the rest were "normal" or "other diseases or abnormalities". Due to employees' long-term exposure to occupational hazards, more than 50 employees requested that Company A arrange for them to undergo occupational disease diagnosis after receiving personal occupational health examination reports, and demanded that Company A not terminate their employment relationship on the dissolution date.

Case analysis

According to the relevant provisions of the Occupational Disease Prevention and Control Law, employers shall not terminate or rescind labor contracts with workers who have not undergone pre departure occupational health examinations. Can Company A terminate the employee's labor contract on the "dissolution date" if Company A has already organized employees to undergo pre departure occupational health examinations?

According to the results of occupational health examinations, the physical examination conclusions for individual workers can be divided into the following five categories: a) no abnormalities have been found so far; b) Re examination; c) Suspected occupational disease; d) Occupational contraindications; e) Other diseases or abnormalities. Article 17 of the "Measures for the Supervision and Administration of Occupational Health Surveillance in Employers" stipulates that "Employers shall take the following measures based on occupational health examination reports: (1) transfer or temporarily remove workers with occupational contraindications from their original work positions; (2) properly arrange for workers whose health hazards may be related to their occupation; (3) arrange for re examination and medical observation of workers who need to be re examined according to the requirements of occupational health examination institutions; (4) arrange for medical observation or occupational disease diagnosis of suspected occupational disease patients according to the recommendations of occupational health examination institutions; (5) immediately improve working conditions, improve occupational disease prevention facilities, and equip workers with occupational disease prevention equipment that meets national standards for positions with occupational disease hazards. Occupational disease hazard protection equipment

According to the above regulations, Company A shall take different corresponding measures based on the results of employees' occupational health examinations: (1) If the occupational health examination results show that a) no abnormalities have been found at present, d) occupational contraindications, e) other diseases or abnormalities, Company A may terminate the labor contract in accordance with the law. (2) For occupational health examination results with b) re examination, Company A shall arrange re examination and medical observation according to the time required by the occupational health examination institution. Due to the possibility of abnormalities related to occupational diseases among the employees undergoing re examination, Company A should not terminate the employment contract of the employees who require re examination. (3) For suspected occupational disease patients with occupational health results, Company A shall arrange for employees to undergo medical observation or occupational disease diagnosis according to the recommendations of occupational health examination institutions, and shall not terminate the labor contract during the period of medical observation and occupational disease diagnosis.

In summary, for employees whose pre departure occupational health examination results indicate re examination or suspected occupational disease patients, the employer shall arrange for re examination, medical observation, or occupational disease diagnosis in accordance with regulations, and shall not terminate or rescind the labor contract.

Company A has decided to dissolve at the end of March 2024. In February 2024, it will organize pre departure occupational health examinations for employees engaged in operations exposed to occupational hazards. As the pre departure occupational health examinations are arranged close to the dissolution date, the company may not be able to take corresponding measures before the dissolution date when employees request occupational disease diagnosis or when the company cannot terminate the labor contract. This may affect the implementation of the overall employee placement plan and even the company's liquidation and cancellation procedures. Therefore, it is recommended that when enterprises carry out large-scale personnel placement, if there are employees engaged in operations that expose them to occupational hazards, they can organize employees to undergo pre departure occupational health examinations within 90 days before the scheduled termination date of the labor contract, in order to reduce the impact of occupational health examination results on the implementation of the overall employee placement plan and the company's liquidation and cancellation procedures.