China's new rules for engaging over-age workers
As China’s population ages and the phased increase in the statutory retirement age continues to roll out, retaining or re-engaging workers past retirement age has become a routine feature of the Chinese labour market. For years, however, the legal status of these arrangements was unclear: courts applied a binary “employment relationship / labour service relationship” test, so workers past retirement age (historically 60 for men and 50 or 55 for women, depending on job position, and now being raised gradually) were usually denied the protections of labour law, including work injury insurance under the social security scheme, minimum wage, overtime compensation, etc.
That gap has now been filled. The Provisional Regulations on the Protection of the Basic Rights and Interests of Over-Age Workers (超龄劳动者基本权益保障暂行规定) (the “Provisional Regulations” or the “Regulations”), issued on 10 May 2026 by the Ministry of Human Resources and Social Security together with four other authorities, took effect on 1 July 2026. They create, for the first time, a standalone “over-age employment relationship” that sits apart from both the traditional employment relationship and the civil-law service relationship, and they build a discrete floor of statutory protections around it.
The key points are:
- A new, independent legal status for over-age workers. The Regulations “unbundle” basic rights protection from the question of whether an employment or a service relationship exists. Whatever the underlying characterisation, if an over-age worker is subject to the employer’s labour management and performs paid work assigned by the employer, the employer is under a statutory duty to protect that worker’s basic rights (see below). This follows the Supreme People's Court's Judicial Interpretation (II) on Labour Disputes (effective 1 September 2025), which repealed an earlier rule that treated individuals who has reached the statutory retirement age and started drawing pension from the social security as automatically being in a labour-service relationship with the employing entity, and which had left a regulatory vacuum for the new Regulations to fill.
- Employers must document the relationship in a written agreement. The Regulations require employers to enter into a written agreement covering term, job content, location, working hours, rest and leave, remuneration, social insurance, labour protection, working conditions and occupational hazard prevention. Terms may be varied by mutual agreement, and the agreement terminates on expiry of the term, completion of the agreed work, occurrence of an agreed termination trigger, or mutual agreement to end it. Unlike an employment relationship, this arrangement does not carry the statutory notice and severance entitlements that apply on termination under labour law.
- Statutory basic rights and minimum protections
Remuneration. Over-age workers must be paid at least the local minimum wage at least once a month. The minimum wage applies where the worker provides normal work. Pay must be made in currency (not in kind or via securities), in full and on time as agreed, and must not be withheld or unreasonably delayed.
Working hours and rest are protected, but with an open question on paid leave. Employers should, in principle, not schedule overtime for over-age workers. Where overtime is genuinely necessary, the general limits under labour law apply - broadly, no more than one hour of overtime per day, extendable to three hours per day (and 36 hours per month) only where the individual’s health is protected - with overtime premiums of 150% (weekdays), 200% (rest days without compensatory leave) and 300% (statutory holidays). Notably, the Regulations are silent on whether over-age employees are entitled to paid annual leave, bereavement leave and similar benefits. This gap is likely to be resolved inconsistently across regions in the meantime.
That question has now received its first judicial answer: a Shandong municipal court ruling of 16 July 2026 held that the Regulations do not entitle over-age individuals to paid annual leave for service rendered after retirement age, though it remains to be seen whether other courts will follow the same approach.
- Work safety and health. Employers are required to assign roles and workloads suited to the worker’s physical condition. They must not assign work that endangers health or safety, and must provide safety-production and occupational-health training to prevent workplace accidents and occupational disease.
- Work injury insurance is mandatory. Employers must enrol over-age workers in work injury insurance under the social security scheme and pay the premiums in full. Individuals workers do not contribute. Employers who fail to enrol bear the full cost of any work injury compensation themselves.
- Disputes follow a dual-track system. Disputes concerning the four statutory basic rights — remuneration, rest and leave, occupational safety and health, and work injury protection — must go through labour arbitration under the Law on Mediation and Arbitration of Labour Disputes. All other disputes (e.g. termination of the agreement, non-compete, pension/medical insurance contribution arrangements, liquidated damages, personal injury claims) may be brought directly before the courts.
- Labour inspection remains available as a remedy. For breaches relating to overtime and wage, over-age workers may complain to the labour inspection authorities, which can order compliance and impose the statutory additional compensation payment.
What should employers be doing now?
The Regulations mark a shift from ad hoc, inconsistent adjudication to a codified regime for “silver-age” employment, and they give employers meaningfully greater contractual flexibility outside the four protected areas. As the 1 July 2026 effective date has now passed, employers who have not already done so should treat compliance as a priority and should, in particular:
- Refresh their standard over-age engagement agreement template to characterise the relationship correctly, set overtime compensation standards, confirm the employer bears the full cost of work injury insurance, and set out clear termination triggers, and notice periods.
- Complete work injury insurance enrolment for all over-age workers.
- Tighten controls and documentation on hours, pay and safety, including minimising overtime, keeping records of any agreed overtime and its payment, maintaining health files (pre-engagement medical checks, periodic reviews, risk assessments, safety training logs), and keeping a “negative list” of high-risk roles to which over-age workers should not be assigned.
