Employers are under a statutory obligation to arrange occupational health examinations for employees engaged in work involving exposure to occupational hazards. Where such examinations reveal occupational contraindications, employers must reassign the affected employees in accordance with law.
In practice, however, employers frequently encounter difficulties. Employees may refuse to co-operate with a reassignment, or a large number of employees may be identified with occupational contraindications, leaving insufficient suitable roles for redeployment.
Drawing upon statutory provisions, judicial practice and practical experience, this article outlines compliance pathways for managing such cases and provides recommendations for the reasonable determination of occupational contraindications.
Occupational contraindications
Tracy Liu
Partner
Jingtian & Gongcheng
Tel: +86 139 1780 4064
E-mail: tracy.liu@jingtian.com
Occupational contraindications should be determined by occupational health examination institutions registered with the local health commission, based on assessment of occupational hazard detection reports together with the results of employee health examinations.
Enterprises are required to engage occupational health technical service institutions (detection institutions) recognised by relevant health authorities to conduct occupational hazard detection. In accordance with standards, they must take into account the frequency, intensity and duration of exposure to occupational hazards, and also the individual’s health condition, severity of any illness, and the individual’s capacity for adaptation.
Reassignment compliance
Under relevant laws and regulations, enterprises must reassign employees identified with occupational contraindications and ensure that such transfers are reasonable. In practice, judicial and arbitration bodies typically consider the following factors in determining whether a job transfer is reasonable.
Remuneration standards. Courts usually focus on whether the employee’s pay remains the same or is not significantly reduced after the transfer. For example, in case Yue 01 Min Zhong No. 19823 (2024), the employee’s original salary was maintained after the transfer, and the court found the transfer reasonable. In case Xin 42 Min Zhong No. 795 (2024), although the employee’s salary was reduced by about 20% after the transfer, the court held that this was within the enterprise’s managerial discretion and did not exceed the necessary limit, thus was reasonable.
Larry Lian
Counsel
Jingtian & Gongcheng
Tel: +86 136 0195 0249
E-mail: larry.lian@jingtian.com
Suitability of new position. When reassigning employees with occupational contraindications, enterprises must comprehensively consider factors such as their skill level, professional qualifications, work experience and actual requirements of the position to select a suitable role. It is worth noting that if occupational hazard factors associated with the new position are only slightly below the statutory limits, the enterprise may still face legal risks of the transfer being deemed unreasonable by the court.
Negotiation procedures. In cases where the court has found the job transfer to be reasonable, enterprises typically engage in multiple rounds of communication and negotiation regarding the transfer and provide a choice of multiple relevant positions for the employee.
Such efforts demonstrate good faith and are conducive to obtaining recognition from judicial and arbitration bodies regarding reasonableness of the transfer. Enterprises are advised to record and properly retain written notices, emails and other documentation of this negotiation process, as evidence of full implementation of the negotiation procedure in the event of future disputes.
When reassignment fails
If an employee does not co-operate with or refuses the job transfer arrangement, the ideal option to minimise dispute risks is to negotiate termination of the employment contract. If negotiation fails, enterprises may consider the following options.
Termination of the employment contract on the grounds of serious violation of discipline. Provided the job transfer is reasonable, employees are obliged under the employment contract or company rules to comply with labour discipline and obey reasonable work arrangements. If an employee refuses, the enterprise may consider terminating the contract on grounds of serious violation of discipline.
If an employee neither assumes the new position nor works at the original post, and this constitutes absenteeism under company rules, the enterprise may consider termination on grounds of absenteeism.
Termination of the employment contract on the grounds of significant changes in circumstances. If an employee has occupational contraindications, the enterprise has a high probability of obtaining judicial recognition for termination of the contract on grounds of objective changes, and the evidentiary burden is relatively low.
The enterprise only needs to prove the existence of a significant change in objective circumstances, namely, that the employee has an occupational contraindication and that the statutory precondition of negotiating a change to the employment contract (i.e. job transfer) has been lawfully fulfilled.
If termination is based on serious violation of discipline, judicial bodies will strictly examine whether there is sufficient factual and institutional basis for the violation, and comprehensively consider the seriousness of the violation and reasonableness of the termination. Given the lower risk of losing a case when terminating due to objective change, enterprises may consider giving this option priority.
Reasonable determination
Based on practical experience, enterprises may take these three measures to achieve reasonable determination of occupational contraindications as far as possible.
- When providing employee position information to detection institutions, refine the classification of positions based on physical space and external environment to avoid unreasonable expansion of the types of occupational hazards associated with a position.
- At the same time, reorganise job responsibilities and functions based on the types, frequency, duration and intensity of exposure to specific hazards in order to optimise and refine the content of hazard detection, providing scientific and sufficient grounds for examination institutions’ identification of contraindications.
- Consult and compare different detection institutions in advance to ensure that appropriate detection methods are used in a differentiated manner according to differences in exposure time and concentration, so as to achieve individualised determinations.
In practice, many examination institutions directly determine whether an employee has an occupational contraindication based on their occupational health examination results and physical condition, combined with the hazards associated with the position – which may lead to an unreasonable increase in the number of employees identified with occupational contraindications.
As enterprises have the right to freely choose qualified examination institutions, it is advisable to carefully select institutions that are willing to comprehensively consider multiple factors when making determinations, such as the exposure concentration and duration shown in occupational hazard detection reports, the position, and the employee’s occupational history.
Tracy Liu is a partner at Jingtian & Gongcheng. She can be contacted by phone at +86 139 1780 4064 and by email at tracy.liu@jingtian.com
Larry Lian is a counsel at Jingtian & Gongcheng. He can be contacted by phone at +86 136 0195 0249 and by email at larry.lian@jingtian.com