Be Caution When Transferring Employees to or from Positions Exposed to Occupational Disease Hazards

Article 8 of the “Labor Contract Law” stipulates: “When recruiting a worker, an employer shall truthfully inform the worker of the job content, working conditions, workplace, occupational hazards, production safety status, labor remuneration, and other information that the worker requests to know; …” Because of this provision, many employers inform workers of matters relating to occupational hazards when recruiting them for positions exposed to such hazards. In addition, Paragraph 1 of Article 33 of the “Law on the Prevention and Control of Occupational Diseases” provides: “When concluding a labor contract with a worker, an employer shall truthfully inform the worker of the potential occupational disease hazards that may arise in the course of work, their consequences, preventive measures against occupational diseases, and relevant benefits, and shall specify such information in the labor contract, and may not conceal or deceive the worker.” This provision furtherly introduces details that an employer shall inform workers of occupational disease hazards upon recruitment.

In practice, when implementing employee job transfers, many employers only focus on whether the employee handbook stipulates the employer’s right to unilaterally adjust positions, while ignoring the special requirements applicable to positions exposed to occupational disease hazards.

In fact, given the potential impact on employees’ health posed by positions exposed to occupational disease hazards, when transferring an employee to such positions, the employer shall inform the employee, and reach a mutual consultation according to the “Law on the Prevention and Control of Occupational Diseases”. Paragraph 2 of Article 33 thereof states: “Where, during the term of an existing labor contract, a worker engages in operations involving occupational disease hazards that were not disclosed in the labor contract due to a change in job position or job content, the employer shall fulfill its obligation of truthful disclosure to the worker in accordance with the provisions of the preceding paragraph, and negotiate amendments to the relevant clauses of the original labor contract.” If an employer violates this provision, according to Paragraph 3 of Article 33: “The worker shall have the right to refuse to engage in operations involving occupational disease hazards, and the employer may not terminate the labor contract concluded with the worker on such grounds.”

Therefore, an employer’s right to manage and adjust employment is restricted when transferring an employee to a position involving occupational disease hazards, and mandatory provisions of the aforementioned laws must be implemented. There are many cases in judicial practice have proved this opinion. This opinion has a reasonable logic, that is, if an employer’s right to manage employment were to take precedence over Paragraph 2 of Article 33, that provision would undoubtedly become a dead letter. Furthermore, an employer could recruit a worker for a position free of occupational hazards, then easily transfer the worker to a position exposed to such hazards by exercising its unilateral job transfer right, which would effectively render Article 8 of the “Labor Contract Law” and Paragraph 1 of Article 33 of the “Law on the Prevention and Control of Occupational Diseases” meaningless.

Then if we transfer an employee from a position exposed to occupational disease hazards to a non-hazardous position, is there any risk? The answer is positive. Special attention must be paid to the following matters:

First, Article 35 of the “Law on the Prevention and Control of Occupational Diseases” requires that an employee be transferred to another position if found to have suffered health damage related to the occupation. Therefore, in such circumstances, transferring the employee from a position exposed to occupational disease hazards to one free of relevant occupational disease risk factors is a statutory obligation of the employer.

Second, the job content of the new position shall be reasonable to the employee’s physical condition, as well as the reasonableness of any salary adjustment (positions exposed to occupational disease hazards usually include hazard allowances and thus may offer higher pay than other positions at the same level). For job transfers made on statutory grounds, the salary reduction should not be excessive, and the salary level of other employees in the same post after transfer shall be taken into account.

In addition, in practice, where an employee falls under the circumstances requiring mandatory job transfer under Article 35 of the “Law on the Prevention and Control of Occupational Diseases”, the employee may propose to waive the transfer and voluntarily sign a commitment letter for reasons such as seeking higher income. If the employer accepts such an arrangement, it will face the risk of being penalized. Pursuant to Article 75 of the “Law on the Prevention and Control of Occupational Diseases”, the employer shall be ordered to make corrections and imposed a fine of not less than CNY50,000 but not more than CNY300,000; if the circumstances are serious, heavier penalties shall apply. In such cases, if the employee insists on refusing the transfer, the company may, on the basis of retaining relevant evidence, terminate the labor contract pursuant to Article 40 of the “Labor Contract Law” on the ground that a “major change in the objective circumstances” has rendered the original contract unperformable and no agreement can be reached through consultation.