The Employer Shall Not Terminate The Labor Contract.

The forty-second workers are in one of the following situations.

(1) workers who engage in occupational disease hazards do not carry out occupational health examination before leaving work, or suspected patients with occupational diseases are diagnosed or observed during medical observation.

(two) occupational disease or injury resulting from work injury and loss or partial loss of working ability in the unit.

(three) in case of illness or non occupational injury, during the prescribed medical period;

(four) female workers during pregnancy, childbirth, and lactation;

(five) it has been working for fifteen consecutive years in the unit and less than five years from the statutory retirement age.

(six) other circumstances stipulated by laws and administrative regulations.

This article is about the stipulation that the employer should not terminate the labor contract.

According to the provisions of the thirty-ninth, fortieth and forty-first articles of the labor contract law, the employer can unilaterally terminate the labor contract when there is a statutory situation.

In order to protect the legitimate rights and interests of certain groups of laborers, the forty-second article of the labor contract law also stipulates that under the six statutory circumstances, the employing unit shall unilaterally terminate the labor contract in accordance with the provisions of the fortieth and forty-first articles of the labor contract law.

It is necessary to pay attention to the following two aspects for the understanding that the employer can not terminate the provisions of the labor contract: first, this article prohibits the Employer from unilaterally terminating the labor contract, and does not prohibit the laborers from unanimously terminating the labor contract with the employing unit; two, the premise of this article is that the employer does not have to terminate the labor contract according to the fortieth and forty-first articles of the labor contract law. Even if the laborer has one of the six circumstances stipulated in this article, the employer can still terminate it according to the thirty-ninth provision of the labor contract law.

(1) workers engaged in occupational hazards do not carry out occupational health examination before leaving work, or suspected patients with occupational diseases during diagnosis or medical observation period.

Workers and occupational patients who are threatened by occupational diseases are the disadvantaged groups in the society. They need the care of the state and the protection of the law. Therefore, an important feature of the occupational disease prevention law is to protect the legitimate rights and interests of workers as the basic starting point and give laborers legal protection.

According to the thirty-second provision of the prevention and control law on occupational diseases, the employing units shall organize occupational health examination before and during the period of employment and in accordance with the provisions of the health administrative department under the State Council.

Workers who fail to carry out occupational health examination before leaving port shall not terminate or terminate their labor contracts.

The forty-ninth provision stipulates that the employer may not terminate or terminate the labor contract concluded by the employer during the diagnosis or medical observation of the suspected occupational disease patient.

It is worth mentioning that for these two types of cases, according to the provisions of the occupational disease prevention law and the spirit of the labor contract law, the employer should not unilaterally terminate the labor contract.

Two. In this unit, occupational diseases or injuries caused by work-related injuries have been confirmed or partially lost.

Occupational disease is a disease caused by workers exposed to occupational harmful substances in productive labor and their occupational activities.

As a result of work injury, as the name suggests is due to work accidents.

Whether occupational disease or occupational injury is related to the relevant working conditions, safety system or labor protection system of employers, occupational disease or injury caused by work should be the corresponding responsibility of employing units as employment organizers and direct beneficiaries.

At the same time, once occupational disease or injury is caused, workers may lose or partially lose their ability to work. If the employer can terminate the labor contract at this time, it will bring difficulties to the workers' medical treatment and life. Therefore, the labor contract law stipulates that the employer may not terminate the labor contract if he suffers from occupational disease or is injured or injured or is partially disabled.

The identification of occupational diseases must be determined by the specialized medical institutions according to the relevant provisions of the occupational disease prevention law.

The industrial injury insurance Ordinance enumerates the situation of work-related injuries, including: accidents in work hours and workplaces due to work reasons; work related preparatory or ending work in the workplace before and after working hours are injured by accidents; in working hours and workplaces, accidental injuries caused by violence such as performing work duties; occupational diseases; injuries due to work reasons or accidents whereabouts are unknown during work hours; injury to motor vehicle accidents on the way to work and work; other laws and administrative regulations should be identified as work-related injuries.

The industrial injury insurance Ordinance also provides for the situation deemed to be work-related injury.

According to the notice issued by the Ministry of labour in 2002 on the identification standard of workers' disability or disability due to illness (Trial Implementation), the standard 1 to 4 and 5 to 6 degrees of disability in the assessment of disability degree of workers' work-related injuries and occupational diseases (GB/T16180-1996) are classified as the complete loss of labor ability and the majority of the disability capacity of this standard.

At the same time, the complete loss of working ability refers to the loss of human tissues and organs, serious defects, deformities or serious injuries caused by injuries or diseases, resulting in the complete loss or serious dysfunction of the tissues and organs or physiological functions of the wounded.

Most of them lose their ability to work. It means that most of the human organs and organs are missing, obviously deformed or damaged due to injury or disease, resulting in dysfunction of damaged tissues and organs.

According to the national standard for the identification of disability degree of work-related injuries and occupational diseases, the standard of disability assessment is divided into 10 levels, which is in line with the standard of disability 1 to 4, and is totally disabled. The 5 to 6 levels are mostly lost labor ability, and 7 to 10 are partially disabled.

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Three, sick or non occupational injury, within the prescribed medical period.

According to the regulations issued by the Ministry of labour in 1994, "the medical treatment period for the sick or non injured workers in enterprises" (No. [1994]479 of Labor Department), the so-called "medical term" refers to the time limit for the workers to stop working and cure the disease due to illness or non occupational injuries and not to terminate the labor contract.

The medical treatment period is usually three months to twenty-four months. The actual period of medical treatment is calculated by the actual working years of the workers themselves and the working years of their work units.

There are several standards: the actual working life is less than ten years, the working life of the company is less than five years or less than three months, and five years or more are six months. The actual working life of ten years or more is that the working life of the unit is less than five years, six months, five years or less are nine months, and the following years are more than five years.

In the period of medical treatment, the employees' sick leave, sickness relief and medical treatment shall be implemented according to the relevant provisions.

According to the seventh provision of the medical treatment period for the sick or non injured workers, the employees of the enterprise are not suffering from diseases caused by work-related disability or by doctors or medical institutions. If the medical treatment expires, the labor appraisal committee shall be appraise according to the criteria for evaluating the disability degree of work-related injuries and occupational diseases.

Those who have been identified as grade one to four should withdraw from their work posts, dissolve their labour relations, handle retirement and retirement procedures, and enjoy retirement and retirement treatment.

Four. Female workers during pregnancy, childbirth, and lactation.

China's constitution and laws have always attached importance to the protection of the rights and interests of women workers.

The twenty-seventh provision of the law on the protection of the rights and interests of women stipulates that no unit shall reduce the wages of female workers for the reasons of marriage, pregnancy, maternity leave, breastfeeding, etc., and dismiss female workers, unilaterally dissolve labor (employment) contracts or service agreements.

However, except for the termination of labor (employment) contract or service agreement, the female employees are required to terminate the contract.

The term pregnancy refers to women's pregnancy.

The term of childbirth refers to a period of ninety days of maternity leave when a woman is born.

Lactation refers to the period from birth to one year of age.

According to the provisions of this article, as long as a woman is in pregnancy, during childbirth or in lactation, the employer shall not unilaterally terminate the labor contract in accordance with the provisions of the fortieth and forty-first articles of the labor contract law.

Five, in this unit for fifteen consecutive years, and less than five years from the statutory retirement age.

Taking into account the great contribution of the old workers to the enterprises and the low reemployment ability, the government and the society are more concerned about this vulnerable group. Therefore, the labor contract law strengthens the protection of the old workers, including stipulating that when the employer implements the labor contract system for the first time or the restructuring of the state-owned enterprises, the workers who have worked continuously for ten years in the employing unit and less than ten years from the statutory retirement age shall conclude an unfixed term labor contract. When the unit has worked for fifteen consecutive years and is less than five years from the statutory retirement age, the employer shall not unilaterally terminate the labor contract in accordance with the provisions of the fortieth and forty-first articles of the labor contract law.

Six. Other circumstances stipulated by laws and administrative regulations.

Considering that there are provisions in some laws and administrative regulations that are not allowed to terminate the labor contract, and in order to facilitate the connection with the laws promulgated later, this article also provides a covering clause, which is conducive to the protection of labourers.