Employing Workers Beyond Retirement Age: New Rules and Business Responses
On July 1, 2026, the Interim Provisions on the Protection of Basic Rights and Interests of Workers Beyond Statutory Retirement Age (Five Department Order No. 56) jointly issued by the Ministry of Human Resources and Social Security, the National Health Commission, the Ministry of Emergency Management, the State Administration of Taxation, and the National Medical Insurance Administration was officially implemented. This is my country's first national departmental regulation that specifically regulates the employment of people who have exceeded the statutory retirement age (hereinafter referred to as over-age workers). It is also a key supporting system after the implementation of the gradual extension of the statutory retirement age.
In the past, overage employment has long been in a state of "no special legislation and relying on case-by-case judgments." Whether and how much responsibility an enterprise bears depends largely on how the court determines a labor relationship or a labor-service relationship. The new regulation has changed this situation: it no longer dwells on the characterization of the relationship, but directly delineates a "basic bottom line of rights and interests" for over-age workers, which applies to all employers that recruit over-age workers, manage their labor and pay them remuneration. This article takes the new regulations as the main line and combines the reference cases included in the People's Court Case Database to interpret the key points of the rules and provide a compliance list before July 1.
1. The new rules: From disputes over the legal nature of the relationship to protection of basic rights
The key to understanding the new regulations is to grasp the changes in their legislative thinking.
1. The application shall be based on the "factual employment", regardless of the nature of the relationship. According to Article 2, as long as over-age workers are subject to labor management by the employer and engage in paid labor arranged by the employer, these regulations will apply; if over-age workers are recruited after early retirement in accordance with regulations, the same applies. This means that regardless of whether the two parties are identified as having a labor relationship or a labor-service relationship, the employer cannot be exempted from its basic security obligations. The debate over "labor or labor services" that has long plagued practice has been deliberately bypassed at the level of basic rights and interests.
2. Clarify the five basic rights and interests. Article 5 establishes that employers should protect over-age workers’ basic rights and interests such as remuneration, rest and leave, labor safety and health, and work-related injury protection. This is consistent with Article 6 of the "Measures of the State Council on Gradually Postponing the Statutory Retirement Age" and is implemented in detail in the form of special regulations.
3. The existing benefit structure such as pension and medical care will not be changed, but the protection of employment links will be strengthened. The new regulations focus on solving the problem of "who will protect the rights and interests on the job?" and will not change the existing benefits of those who already enjoy pension and medical benefits (Articles 16 and 17). At the same time, employment obligations such as written agreements, work-related injury insurance, bottom line remuneration, and safety and health will be implemented.
2. Six core obligations that enterprises must implement
(1) A written employment agreement must be entered into
Article 6 requires the employer to enter into a written employment agreement with over-age workers, clarifying the agreement period, work content, work location, working hours, rest and vacation, labor remuneration, social insurance, labor protection, working conditions, occupational hazard protection and other matters. This means that the old practice of “verbal agreement, temporary help” is no longer compliant. There are also rules for the termination of the agreement: when the term expires, the agreed work is completed, the agreed termination conditions appear, or the agreement is terminated by consensus, the employment will be terminated (Article 8).
(2) The remuneration shall not be less than the minimum wage and must be paid in full monthly currency.
Articles 10 to 12 stipulate that the employer should agree on the remuneration amount or remuneration standard, payment cycle and method; if an over-age worker provides normal labor, the remuneration shall not be lower than the local minimum wage standard; the employer shall pay the employee in full and in time as agreed in currency form, at least once a month, and shall not substitute it with physical goods or securities, and shall not withhold or delay payment without reason.
(3) Reasonably arrange working hours and vacations, and generally do not arrange overtime work
Article 9 requires that working hours and vacations be reasonably arranged in accordance with the "Regulations of the State Council on Employees' Working Hours" and the "Regulations on National Holidays and Memorial Days". Overage workers are generally not arranged to work overtime; if overtime is really necessary, the provisions on overtime hours and overtime pay in Articles 41, 42 and 44 of the Labor Law should be followed.
(4) The position and labor intensity must be suitable for the physical condition, and dangerous operations must not be arranged
Article 13 clarifies that employers shall determine appropriate positions and labor intensity based on the physical condition of over-age workers, and shall not arrange for them to engage in labor or dangerous operations that endanger physical and mental health. Article 14 requires the conduct of education and training on production safety and occupational health to prevent accidents and occupational diseases. This is a mandatory requirement for elderly practitioners to be "tailor-fit for their jobs."
(5) Overage workers should participate in work-related injury insurance. This is the most important change.
Article 15 stipulates that the employer shall participate in work-related injury insurance and pay work-related injury insurance premiums for over-age workers. Individuals do not need to pay premiums. Those who are injured at work or suffer from occupational diseases shall conduct work-related injury identification and labor ability assessment in accordance with regulations and enjoy corresponding work-related injury protection benefits. Specific work-related injury protection measures for over-age workers shall be formulated separately. This is a substantial upgrade from the previous “can participate in insurance voluntarily” in various places to the unified “should participate in insurance” nationwide, shifting the risk of over-age work-related injuries from the sole responsibility of the employer to a decentralized work-related injury insurance system. It should be noted that supporting work-related injury protection measures have yet to be released, and the specific identification and benefits during the transition period still need to be implemented in accordance with the current regulations, namely the Ministry of Human Resources and Social Security’s [2016] Opinion No. 29 and the [2010] Xingta Zi Reply No. 10.
(6) Make connections between pension and medical insurance
Articles 16 and 17 stipulate that if those who have enjoyed the basic pension insurance benefits and the employee basic medical insurance retiree benefits continue to work, their benefits will remain unchanged; those who do not enjoy the corresponding benefits and choose to continue to participate in the insurance can pay as an individual, or they can be paid by the employer after consensus, and the individual payable portion will be withheld and paid by the employer. Enterprises should clarify their withholding and payment responsibilities accordingly.
3. Risk landscape before the new regulations: Warning from the People's Court Case Database case
The loopholes to be plugged by the new regulations are precisely the risk points that have appeared repeatedly in refereeing in the past. The reference cases included in the People's Court Case Database can be used as a mirror for understanding the value of the new regulations.
1. Age is never a shield for work-related injuries. In the case of a Beijing technology company v. Haidian District Human Resources and Social Security Bureau [(2024) Beijing 01 Xingzhong No. 254], the retirees only signed a labor agreement, but still relied on the "the Supreme People's Court Administrative Tribunal's Regulation on Exceeding the Law" "Reply to the Request for Instructions on whether the "Regulations on Work-related Injury Insurance" should be applied to migrant workers with a fixed retirement age who were injured on the job" ([2010] Xingta Zi No. 10) were found to be work-related injuries, and the journey back to the dormitory from lunch was a reasonable extension of work. The case of a security service company v. Dongcheng District Human Resources and Social Security Bureau [(2022) Jing02 Xingzhi No. 909] further confirmed that employment depends on the substantive requirements rather than the contract form, and the death of an overage person who suddenly becomes ill within 48 hours on the job is deemed to be a work-related injury. The compulsory insurance in Article 15 of the new regulations is an institutional response to such risks.
2. Insurance is the best solution to mitigate risks. The case of a bamboo factory in Ziyu County v. Human Resources and Social Security Bureau of Ziyu County [(2024) Gui 0329 Xingchu No. 4] established that if the employer pays work-related injury insurance premiums for over-age personnel, work-related injury benefits should be paid from the work-related injury insurance fund; Li Mouying The case against Muchuan County Social Security Center [(2023) Chuan 1102 Xingchu No. 106] recognized that if construction companies pay contributions to overage workers through project insurance, even if they have received pensions, they still enjoy corresponding work-related injury benefits. The "voluntary insurance participation" practice in these cases will be upgraded to a general obligation with Article 15 of the new regulations.
3. Even if a labor relationship is determined, basic rights and interests must still be protected. In the case between Hou Mousheng et al. and Jiangxi Ecological Technology Wannian Branch [(2020) Ganmin Zai No. 2], the labor contract contract signed by over-age personnel with the right to operate independently was deemed to be a labor relationship. Under the new regulations, although this characterization will not change, basic rights such as the bottom line of remuneration, safety and health, and work-related injury insurance will not be lost because it is classified as labor services. The case filed by Jin Mouhe v. Tan Mou [(2024) Su 0509 Minchu No. 3760] confirmed that if overage workers continue to work and have actual income, lost work wages should be supported, and the value of their labor is recognized by the law.
4. Judicial and human social practices in various places have been explored in advance. The case between a tableware company and Shao issued by the Higher People's Court of Jiangsu Province in 2024 clarified that overage people who do not enjoy pension insurance benefits are treated as labor relations, and the rights and interests of work-related injuries are protected; the case of a labor service company in Da'an City issued by the Higher People's Court of Jilin Province in 2025 clarified that the pension insurance for urban and rural residents is not equal to the basic pension insurance for urban employees, and those who are not covered by the latter are still liable for work-related injuries. These referee experiences have laid the foundation for the unified application of the new regulations.
4. Connect with existing rules to avoid three misunderstandings
1. The new regulations do not directly determine whether a labor relationship or a labor service relationship, and the original qualitative rules have changed. The original "the Supreme People's Court Interpretation on Legal Issues Applicable in the Trial of Labor Dispute Cases (1)" Article 32, Paragraph 1, "Persons who have enjoyed pension insurance benefits or received pensions shall be treated as labor relations" has been replaced by the 2025 Article 21 of the "the Supreme People's Court Interpretation on Applicable Legal Issues in the Trial of Labor Dispute Cases (II)" that came into effect on September 1 is abolished. There is currently no unified qualitative rule at the judicial interpretation level, and the identification of relationships returns to the judgment of individual case facts. The significance of the new regulations is that no matter how the case is characterized, the bottom line of basic rights and interests is uniformly applied, and "qualitative decision protection" is giving way to "unified protection of basic rights and interests."
2. The detailed rules for work-related injuries have not yet been released, and the transition period cannot be "waited". Article 15 has established the compulsory obligation to participate in insurance, but "work-related injury protection measures for over-age workers will be formulated separately." Before the supporting measures are implemented, enterprises should participate in insurance as soon as possible according to local handling standards, and continue to refer to the Ministry of Human Resources and Social Security's [2016] Opinion No. 29 and [2010] Xingta Zi Reply No. 10 for implementation, and shall not delay on the grounds that the detailed rules have not been released.
3. This provision does not apply to those with flexible delayed retirement. Article 23 clarifies that workers who flexibly delay retirement in accordance with national regulations will still be subject to the Labor Contract Law "Personnel Management Regulations of Public Institutions" etc. during the period of delayed retirement, and enterprises should not confuse this with over-age employment.
In terms of relief channels, Article 19 stipulates that disputes arising from labor remuneration, rest and leave, labor safety and health, and work-related injury protection shall be handled in accordance with the Labor Dispute Mediation and Arbitration Law; disputes over other matters may be filed in court. If regulations on remuneration payment, overtime restrictions, etc. are violated, workers may complain to the human resources and social security department, which will conduct inspections in accordance with Article 85 of the Labor Contract Law and the "Labor and Social Security Supervision Regulations" (Article 20).
5. Compliance list before July 1
1. Check the re-signing agreement. Comprehensively identify over-age employees on the job, sign written employment agreements that meet the requirements of Article 6 one by one, improve the necessary terms, and replace oral agreements.
2. Start work-related injury insurance. Compare the local work-related injury insurance standards and handle insurance and payment for over-age workers as soon as possible; for positions that cannot be included in work-related injury insurance for the time being, take out employer liability insurance and group accident insurance during the transition period.
3. Benchmark the bottom line of remuneration. Verify that remuneration is not lower than the local minimum wage, change it to a monthly, full, and monetary payment, and clean up illegal practices such as salary offsets in kind and arrears and deductions.
4. Suitability and safety management. Based on the health status assessment position and intensity, hazardous work arrangements are eliminated, safety production and occupational health education and training are implemented, and training records are retained.
5. Straighten out the connection with social security. Distinguish the enjoyment of pension and medical benefits, and clarify the withholding and payment arrangements for those who continue to participate in the insurance.
6. Improve the dispute plan. Clarify the response procedures for complaints, arbitration, and litigation, and retain a full set of written vouchers such as agreements, attendance, salary, insurance, and safety training to ensure that they are well-documented.
Conclusion
The implementation of the Interim Provisions on the Protection of Basic Rights and Interests of Workers Beyond Statutory Retirement Age marks the transition of over-age employment from a "grey area" to a "law-based" one. For enterprises, this is both a constraint and a certainty: signing written agreements in place, participating in work-related injury insurance, and solidly protecting basic rights and interests can not only absorb senior human resources in compliance with regulations, but also lock employment risks within a controllable range. As the implementation of the new regulations is about to begin on July 1, it is recommended that employers immediately initiate self-examination and rectification to make up for compliance shortcomings before the new regulations are implemented.