This article addresses several issues related to employment in cases where employees are unable to perform their duties due to administrative detention, forced detoxification or criminal charges. Specifically, the article will discuss how employers can establish reasonable rules and regulations to deal with such situations, how to legally terminate employment, and whether employers can terminate employment for reasons other than an employee’s unauthorized absence.

Part 1

If an employee is required to undergo a two-year mandatory drug rehabilitation program by the government, can the employer unilaterally terminate the employment contract if there are no relevant regulations in place? This issue has two different viewpoints.

1. One viewpoint is that:

If there are no relevant regulations in the company’s rules and regulations, the “serious misconduct” clause cannot be used to terminate the contract. If the employer insists on unilaterally terminating the contract, there is a risk of illegal termination.

Since the inability to perform the employment contract is due to the employee’s own reasons, in this case, the provision of “suspension of performance” in the labor contract can be considered. Since the employee is unable to provide labor due to their own reasons, the employer is not obligated to pay remuneration. The employer can stop salary payments and seal the employee’s social security account. This will reduce many risks for the employer.

• While the other viewpoint is that (this article holds this view):
• Regarding “suspension” of the labor contract:

Although there are provisions for “suspension” in the Regulation of Shanghai Municipality on Labor Contract, there is no such provision in China’s Labor Contract Law, so the applicability of “suspension” is questionable.

The Regulation of Shanghai Municipality on Labor Contract do not specify how to handle the employee’s social insurance during the suspension period. If the employer arbitrarily freezes the social insurance, the employer may face huge compensation risks when the employee encounters a major illness (especially for drug-using employees).

Therefore, if the two parties can reach an agreement and stipulate that the employee bears the social insurance cost during the suspension period (including the employer’s contribution), it is of course the best method. However, if an agreement cannot be reached, the employer will need to bear the cost of social insurance. It can be seen that if the employer uses the “suspension” of the labor contract to handle the situation while the employee is under compulsory drug treatment, it will lead to many unfavorable risks.

• Regarding “termination” of the labor contract:

If the employer’s rules and regulations stipulate that an employee who cannot perform the labor contract due to illegal behavior (such as drug use) is deemed to have committed “serious misconduct,” the employer can rightfully terminate the contract.

Part 2

1. How to terminate employment due to criminal behavior resulting in absenteeism? If an employee is suspected of committing a crime and is awaiting trial, can the employer exercise their right to terminate the employment contract?

Article 39, Paragraph 6 of the Labor Contract Law stipulates that the employer can unilaterally terminate the contract if the employee is being pursued for criminal responsibility according to law. However, before the employee is pursued for criminal responsibility, they may be detained unjustly and it cannot be determined whether the employee is at fault or guilty. Therefore, the employer cannot easily unilaterally terminate the employment contract. The employer must wait until the employee is being pursued for criminal responsibility before exercising their right to terminate.

• How to terminate employment due to illegal, non-criminal behavior resulting in absenteeism? If the employee is detained by administrative detention or is forced into drug rehabilitation, resulting in the loss of personal freedom and inability to perform the labor contract, can the employer unilaterally terminate the contract?

If the employer’s rules and regulations state that absenteeism constitutes a serious violation of discipline rather than only “absenteeism without reasonable cause,” the employer can terminate the employment contract based on the employee’s own illegal behavior that resulted in long-term absenteeism.

• Practical Suggestions: This article suggests that the employer’s rules and regulations should include the following provision: “If the employee’s own fault or illegal behavior results in the inability to perform the labor contract, including but not limited to being administratively detained or forced into drug rehabilitation for a specific number of days, the employer can terminate the employment contract on the grounds of serious violation of discipline.”