Does the civil servant recruitment physical examination standard require a "physical examination"?
2024-08-07
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Pei Sitong, intern reporter of China Youth Daily and China Youth Network
In 2003, 25-year-old Zhang Xianzhu was rejected by the Wuhu Municipal Personnel Bureau of Anhui Province because he was a carrier of the hepatitis B virus. He later sued the Wuhu Municipal Personnel Bureau for violating his legal rights, initiating "China's first hepatitis B discrimination case."
After the verdict of this case, in 2005, the former Ministry of Personnel and the Ministry of Health promulgated the "General Standards for Physical Examinations for Civil Servant Recruitment (Trial)" (hereinafter referred to as the "Physical Examination Standards"), which unified the previously varying physical examination standards for civil servant recruitment in various places, revised the unscientific regulations, and especially restated the recruitment of hepatitis B carriers.
Over the past 20 years, the Physical Examination Standards, as a national standard document, has been widely referenced by most enterprises and institutions in my country and has become a model document for employment physical examinations and recruitment. However, with the development of social culture and medical technology, the standards have gradually encountered new situations, and many candidates have filed lawsuits across the country due to "disputes over employment physical examination standards."
Many scholars believe that some provisions of the "Physical Examination Standards" have lagged behind the progress of social development. In the past few years, proposals to revise the "Physical Examination Standards" for civil servants have been repeatedly raised at the National People's Congress and the Chinese People's Political Consultative Conference. The relevant departments have responded positively and stated that they have conducted relevant research.
Different provinces have different standards
In 2023, after two years of preparation, 32-year-old Li Yu finally passed the examination and was admitted as a primary school teacher in Siming District, Xiamen City, Fujian Province. But she was not happy for long, as a notice of failing the physical examination was placed in front of her.
"Thalassemia, I never thought it was due to this problem," said Li Yu.
Li Yu received the medical examination result notice. Photo provided by the interviewee
For many years, she has been working as a substitute teacher in the education and training industry and has not felt any abnormality in her body. In 2017, she learned during her marriage examination that she was a carrier of the thalassemia gene. The following year, when she was preparing to get pregnant, she went to the hospital for consultation, and the doctor told her: "This is carried in the genes at birth, there is no problem, and no intervention treatment is needed."
Later, she and her husband gave birth to three healthy children. Before the physical examination, she specifically checked the "Fujian Province Teacher Qualification Applicant Physical Examination Standards", in which the third item read: "Blood system disease, disqualified." She asked the doctor whether it would have an impact, and the doctor replied: "No, it's okay, the Education Bureau will not look at this."
Therefore, she wrote down her medical history truthfully, but she was not expected to be blocked from the job because of it. She went to the doctor to complain, and the doctor was also quite surprised, "because he himself is a thalassemia patient, and many people he knows are thalassemia gene carriers, and they can all work normally." Li Yu said.
She contacted the Siming District Education Bureau, who responded that they were "handling matters in accordance with regulations" based on the "Fujian Province Teacher Qualification Applicant Physical Examination Standards." But before that, she had passed the Fujian Province Teacher Qualification Examination, which was also based on this standard, and was issued a teacher qualification certificate by the Siming District Education Bureau. "So how could there be two results for one standard?" Li Yu was puzzled.
She continued to inquire with the Fujian Provincial Health Commission, and the response was: "Refer to the national civil servant physical examination standards." In the "Civil Servant Recruitment Physical Examination Operation Manual (Trial)" (hereinafter referred to as the "Operation Manual"), the explanation of the clause on "anemia" reads: "Except for iron deficiency anemia caused by certain reasons, it is often difficult to completely cure and is considered a failure in the physical examination."
However, Li Yu learned that Guangdong and Guangxi provinces (regions) had issued special physical examination standards for their provincial public institutions in April 2010 and 2024, respectively, and relaxed the recruitment regulations for thalassemia among blood system diseases.
For example, in the latest "General Standards for Physical Examination of Public Institutions in Guangxi Zhuang Autonomous Region (Trial)", Article 3 clearly stipulates: "Thalassemia (thalassemia gene carriers, quiescent type, mild type) and hemoglobin higher than 90g/L, which does not affect normal work, can be qualified."
Provisions on "thalassemia" in the "General Standards for Physical Examination of Public Institutions in Guangxi Zhuang Autonomous Region (Trial)". Image from the official website of the Department of Human Resources and Social Security of Guangxi Zhuang Autonomous Region
Liu Rongrong, deputy director of the Department of Hematology at the First Affiliated Hospital of Guangxi Medical University, participated in the revision of the physical examination standards for public institutions in Guangxi. She told the China Youth Daily and China Youth Network reporter that in the past few years, the call to relax the entry threshold for patients with "thalassemia" has been continuously discussed by all sectors.
She said that thalassemia is one of the most common single-gene genetic diseases in humans. The gene carrier rate of thalassemia in my country is about 8%, among which the 10 southern provinces are high-incidence areas of thalassemia. The gene carrier rate of "α thalassemia" in Guangxi is as high as 18%-20%. "About one in every five people may be a carrier of the thalassemia gene."
At present, under the vigorous prevention and control of moderate and severe thalassemia in my country, Guangxi has almost achieved "zero births with severe thalassemia". The remaining gene carriers and mild thalassemia patients "will only have mild anemia, which will basically not affect their daily lives, nor will it have a significant impact on their lifespan and quality of life."
Three years ago, the hospital where Liu Rongrong worked urgently recruited three staff members, two of whom were thalassemia patients. This made the human resources department feel embarrassed, so they specially asked doctors for advice. "We expressed our professional clinical opinions at the time and felt that there was no problem and they were qualified."
"But other units that are not familiar with this disease can only select according to the standards, which will affect the job-seeking of this group of people," said Liu Rongrong.
For example, a personnel staff member of a public institution told a reporter from China Youth Daily and China Youth Network that he could only judge whether a candidate's physical condition met the job standards based on the physical examination report provided by the hospital, and it was difficult to make flexible adjustments based on different physical conditions.
Li Yu told the China Youth Daily and China Youth Network reporter that as far as she knows, in the 2023 recruitment of primary and secondary school teachers in Xiamen, Fujian Province, at least 5 people were judged to be unqualified due to thalassemia. Among them, some have been preparing for the exam for 5 years, some have ranked first in the exam, and some have worked in the education industry for many years, donated blood twice, and have run 11 marathons in total.
One of the applicants told the China Youth Daily and China Youth Network reporter that after she was rejected, the relevant staff told her privately that they could recommend her to work as a "substitute teacher" in some public schools. This also made her wonder: "If the purpose is to select talents who can work normally, why can't regular employees be allowed, but contract workers can?"
After she disclosed the situation on social media, the relevant posts received hundreds of thousands of views. Some people said that they were blocked due to similar situations. Some candidates preparing for the civil service exams had no idea that they might not be able to pass the pre-employment physical examination due to thalassemia.
Medical care is improving. Should the "physical examination standards" keep up?
Zhang Baoyan, a representative of the 13th National People's Congress, has proposed for two consecutive years since the 2021 Two Sessions to revise the "General Standards for Physical Examinations for Civil Servant Recruitment (Trial)", calling for the relaxation of recruitment restrictions for some chronic disease patients who are able to perform their duties normally.
Zhang Baoyan first started paying attention to this issue because of the messages from patients with polycystic kidney disease, "and then I found that this was not an isolated phenomenon, but involved a large group of people."
Mao Zhiguo, director of the Nephrology Department of the Second Affiliated Hospital of the Naval Medical University (Shanghai Changzheng Hospital), told China Youth Daily and China Youth Network reporters: Polycystic kidney disease is currently the most common single-gene inherited kidney disease, with an incidence rate of about one in a thousand. "Based on this ratio, there are at least 1.45 million patients in our country."
"The main feature of this disease is its long course. Under natural conditions without any intervention, some patients may suffer from renal failure in their 50s or 60s." Mao Zhiguo speculated that this might be one of the reasons why the 2005 edition of the "Physical Examination Standards" defined it as "unqualified."
However, Mao Zhiguo said that in recent years, the medical community has made great progress in the understanding and treatment of polycystic kidney disease. "Twenty years ago, the means of preventing and treating this disease may have been limited, but with today's medical means, our early genetic screening for polycystic kidney disease is quite mature, and patients can detect the disease very early, and it is completely 'preventable, treatable, and can significantly slow down the progression'. So I think from the current medical level, the punishment for polycystic kidney disease patients is a bit 'overly severe'."
This is also one of the main points of those who advocate the revision of the "Physical Examination Standards". The "Physical Examination Standards" for civil servants were formulated in 2005 and last revised in 2016. Some medical experts believe that compared with the continuously improved medical level, this standard has obviously lagged behind.
In addition to polycystic kidney disease, Xu Guogang, director of the Department of Health Medicine at the Second Medical Center of the General Hospital of the People's Liberation Army, once stated at the "Jimen Decision-making" forum held by the Public Policy Research Center of China University of Political Science and Law that hypertension, diabetes and some mental illnesses that are currently identified as "unqualified" by the "Physical Examination Standards" may also need to be appropriately adjusted based on the current medical level.
During the research process, Zhang Baoyan also met some very excellent patients who were unable to enter research institutes or universities and turned to work overseas. "I feel that this is also a waste of talent."
In order to find a job smoothly, some patients go into the "grey area". Searching on major websites, you can still find "examination agents" or self-media bloggers named "physical examination guarantee". Their business scope covers examinations, contacting hospitals and even modifying results. Some of them are patients with thalassemia or polycystic kidney disease. On social media, some thalassemia patients also gather to discuss "how to conceal medical history" or adjust physical indicators through "taking medicine, injections, dehydration" and other methods, some of which are harmful to the body. However, due to differences in implementation by different units and hospitals, some patients can indeed get away with it.
Li Yu said that she knew this method was not compliant, but she sometimes felt conflicted when faced with actual employment needs. Zhou Shihong, a member of the 14th National Committee of the Chinese People's Political Consultative Conference who proposed revising the "Physical Examination Standards" at this year's National People's Congress, told China Youth Daily and China Youth Network reporters that if there are gaps in the standards, then the blank areas are likely to be "filled with gray things."
Litigation
As a patient with Hashimoto's thyroiditis, Liang Lunuan decided to use legal weapons to protect his rights.
In June 2023, Liang Lunuan passed the assessment for the position of "Traditional Chinese Medicine Practitioner in Oncology" at Xiamen Traditional Chinese Medicine Hospital with the first place in the written test and interview, but was judged to have failed the physical examination because "his thyroid function did not meet the physical examination standards" and was unable to start work.
The court verdict of Liang Lunuan v. Xiamen Traditional Chinese Medicine Hospital. Photo provided by the interviewee
"My first reaction was surprise," Liang Lu Nuan said. "I know that my thyroid antibodies have been elevated for many years, but the doctor has always told me that my thyroid function is normal and does not require any intervention. Also, there has been no abnormality in my body over the years."
When she was in high school, Liang Lu Nuan was determined to become a doctor because of an article about Lin Qiaozhi, the "Mother of Obstetrics and Gynecology" in my country. In college, she was admitted to the medical school as she wished. After 7 years of study and 2 years of regular training, she finally passed the examination of a tertiary hospital in fierce competition. During the regular training, she was also rated as an "excellent resident doctor" and went to work on the front line during the COVID-19 pandemic.
Therefore, she was incomprehensible when she learned that she was ultimately unable to join the company due to "Hashimoto's thyroiditis." When she asked the Xiamen Traditional Chinese Medicine Hospital, they replied that the decision was based on the "Physical Examination Standards" for civil servants.
In the Operation Manual, "Hashimoto's thyroiditis" is clearly listed as a thyroid disease that will result in a failed physical examination. Zheng Jiaoyang, director of the Health Care Center of the Second Affiliated Hospital of the Naval Medical University (Shanghai Changzheng Hospital), told China Youth Daily and China Youth Network reporters that she encountered many cases in the outpatient clinic where patients were unable to start work due to Hashimoto's thyroiditis.
"But Hashimoto's thyroiditis is actually a very mild autoimmune disease. Many patients will not have any impact throughout their lives." Zheng Jiaoyang introduced, "This disease is very easy to control. Even if some people may need to take thyroid hormones for life, it is just like wearing glasses or dentures. It does not affect your normal life."
Liang Lunuan's mentor during school and internship were both patients with Hashimoto's thyroiditis. Even the personnel staff of Xiamen Traditional Chinese Medicine Hospital believed that "Hashimoto's is not a disease", but they also said: "Policy matters cannot be overcome, and we can only implement them."
In October 2023, the case of Liang Lunuan suing Xiamen Traditional Chinese Medicine Hospital for "equal employment rights dispute" was filed in the People's Court of Huli District, Xiamen.
But in the end, Liang Lu Nuan lost both the first and second trials. The court verdict shows that the main reason for the court's verdict is that public institutions have characteristics such as service, public welfare, and non-profit, and their funds come from national fiscal revenue, which determines that their recruitment should be more strict, legal, and compliant. The current laws and regulations do not have specific and unified provisions on the physical examination standards for public institution recruitment, but it is a common practice to refer to and apply the physical examination standards and items for civil servants.
However, there is no explicit provision in current laws and regulations that it is illegal to refuse to employ applicants for public institutions on the grounds of Hashimoto's thyroiditis. In addition, Xiamen Traditional Chinese Medicine Hospital clearly publicized the basis for the physical examination during the recruitment process. Liang Lu Nuan's participation in the recruitment process under such circumstances can be regarded as informed consent. Therefore, Xiamen Traditional Chinese Medicine Hospital's decision not to employ him is legally justified and does not constitute employment discrimination.
Liang Lu Nuan felt that this result was "within expectations", "but you still have to fight this lawsuit, because if you don't it will attract even less judicial attention."
According to an article on the official WeChat public account of the Foshan Intermediate People's Court in Guangdong Province, in 2010, three thalassemia patients in Foshan sued the Foshan Human Resources and Social Security Bureau because they were rejected in the civil servant physical examination. The three patients eventually lost the case. However, after the court's ruling, the second-instance judge also issued a judicial suggestion to the Foshan Human Resources and Social Security Bureau, requiring it to investigate the relevant issues. The first-instance judge wrote a paper entitled "The Litigability of Civil Servant Recruitment Behavior and the Determination of the Legality of Thalassemia Testing" and submitted it to the Administrative Trial Professional Committee of the Guangdong Trial Theory Research Association for academic discussion and research, which ultimately prompted Guangdong Province to issue a document to relax the entry restrictions for thalassemia patients in public institutions.
In the "first case of hepatitis B discrimination in China" in 2003, Zhang Xianzhu, who scored first in the written test and interview, failed the Anhui Provincial Civil Service Examination because he was found to have hepatitis B virus during the physical examination. He eventually sued the Wuhu Municipal Personnel Bureau for "discrimination against hepatitis B patients" and pushed the country to adjust its recruitment policies for hepatitis B patients.
Zhou Wei, a lawyer who represented both the "Hepatitis B Discrimination Case" and the "Gene Discrimination Case", told China Youth Daily and China Youth Network that the two cases attracted widespread attention due to some accidental factors. "At that time, all sectors of society were very concerned about the relevant situation, and all government departments took the initiative to respond." However, China Youth Daily and China Youth Network reporters found through a search on the Judgment Documents Network that most of these cases were lost. The court rulings also follow a similar model, that is, to see whether there are standards and they are public, and whether the physical examination results meet the standards, and only conduct a basic review of whether they are formally legal or not, and will not involve whether the standards are legitimate.
"This is actually a mechanical judgment, and it does not explore the issue from the perspective of legal principles and fairness and justice." CPPCC member Zhou Shihong told China Youth Daily and China Youth Network reporters.
Although my country does not have a special anti-employment discrimination law, the concept of employment discrimination is scattered in the Constitution, the Employment Promotion Law, the Labor Law and other related laws. Zhou Wei said that court judgments need to achieve an organic unity of legal, social and political effects, "but this is very dependent on the personal ability and courage of the judge, and also requires the support of the superior court president."
For example, after the first trial, Liang Lu Nuan received a call from the judge, "He actually had doubts about his own verdict and encouraged me to appeal to a higher people's court."
Professor Liu Xiaonan of China University of Political Science and Law once summarized the litigation difficulties of such cases in his article "Analysis of Legal Issues in China's Equal Employment Rights Dispute Cases".
At present, the case of "equal employment rights dispute" is classified under the case of "general personality rights dispute" as general tort liability. General tort liability emphasizes that only personal fault is the legal basis for assuming responsibility, that is, the judge needs to determine that the defendant has "subjective fault" before it can be determined that he has violated the equal employment rights of workers.
Li Zhongxia, a professor at the School of Law of Renmin University of China, also told China Youth Daily and China Youth Network reporters that since there are gray areas in the actual application of the "Physical Examination Standards", "it is difficult for us to classify it as a subjective requirement or an objective requirement for restricting occupations."
On the other hand, according to the Civil Procedure Law's "whoever advocates must provide evidence" rule, workers who sue for "equal employment rights disputes" must bear a heavier burden of proof. However, compared with employers, workers are usually in a weak position, with great information asymmetry, and many employment discrimination behaviors are also invisible, all of which have virtually raised the threshold for patients to sue.
After Liang Lu Nuan, in April this year, a candidate who was rejected in the Xiamen City Primary and Secondary School Teachers' Employment Examination due to thalassemia filed a lawsuit against the Xiamen Siming District Education Bureau. In August, the case was also declared lost. However, the candidate told the reporter of China Youth Daily and China Youth Network that she would continue to appeal, "hoping to gain more attention from the society."
How to change
In the past five years, representatives at the National People's Congress and the Chinese People's Political Consultative Conference have called for the revision of the "Physical Examination Standards" for civil servants. Jin Li, a representative of the 14th National People's Congress and president of Fudan University, once said in an email to a representative of a polycystic kidney disease patient that the relevant departments responded positively to his suggestions, believing that revisions were indeed necessary, but that research and demonstration were still needed. He also said that he had conveyed to the relevant parties the suggestion that the physical examination standards for civil servant recruitment should not be extended to other industries.
In fact, although the current "Physical Examination Standards" are controversial, when they were first promulgated in 2005, they were intended to better protect citizens' right to equal employment.
Before the promulgation of this standard, my country did not have a unified standard for physical examinations for civil servant recruitment. Instead, each locality was left to formulate its own standards based on actual conditions. This led to very inconsistent standards in different places, and there was even a situation where "appearance, height, and breast symmetry" were used as standards, causing a lot of dissatisfaction.
In January 2004, the former Ministry of Personnel and the Ministry of Health organized the drafting of the general standards for the physical examination of civil servants, with the Chinese Medical Association taking on the specific work. The standards were discussed at different levels for more than a dozen times, gathering opinions from legal and medical experts and employing departments from various fields, provinces and cities, and were publicly solicited from the public twice, receiving a total of 5,368 valid emails.
According to reports from that year, the formulation of the "Physical Examination Standards" mainly follows three principles: respect for science, respect for the law, and people-oriented. At the same time, it should "take into account the interests of all parties", safeguarding the legitimate rights and interests of the majority of candidates, taking into account the needs of civil servant team building, and focusing on operability in practice. Medical experts have said that the formulation of the standard fully respected the opinions of the medical community, and the draft of the Chinese Medical Association did not make major changes in terms of scale except for the expression issues.
In the 2005 edition of the "Physical Examination Standards", many unscientific regulations and issues that had aroused strong public concern were revised, especially the scientific description of the recruitment of hepatitis B carriers, which was an important progress in the context of the time.
The subsequent revisions to the "Physical Examination Standards" were all responses to social calls at the time. A trend of relaxation was shown in many clauses, reflecting the "Physical Examination Standards"' goal of promoting fairness.
However, since the adjustment of laws and regulations usually lags behind, it is difficult to keep up with the rapid development of social changes. Therefore, many legal and medical experts believe that in addition to regularly revising the "Physical Examination Standards", it is also necessary to examine the rationality of the "Physical Examination Standards".
Zhou Shihong told the China Youth Daily and China Youth Network reporter: "The physical examination standard should be a minimum standard, not a selective standard." According to Article 13 of the Civil Servants Law, civil servants should "have the physical conditions and psychological qualities to perform their duties normally", so the "Physical Examination Standards" should be based on this and should not be too high.
Some legal researchers believe that the current "Physical Examination Standards" are actually "a collection of individual rather than common characteristics", that is, it is the sum of all physical conditions for civil service positions, rather than a "greatest common divisor", which requires that the physical conditions of applicants must reach an "all-round" state.
Moreover, this "one-size-fits-all" standard fails to meet the specific needs of different positions and violates the principle that the conditions for employment should be consistent with the job requirements. At present, most countries that implement the civil service system have not formulated uniformly applicable standards, and if they do, they are limited to the minimum requirements. For example, Article 44 of Japan's National Public Service Law stipulates: "The national personnel department may formulate the minimum objective and uniform requirements necessary for candidates to perform their duties according to different government positions."
However, in reality, Dou Ziyan, the director of the special business section of the Beijing Municipal Physical Examination Center, who has been engaged in special physical examinations for civil servants for nearly 10 years, told the China Youth Daily and China Youth Network reporter: "The overall applicability of the current "Physical Examination Standards" is still acceptable, and the failure rate of physical examinations in actual application is not high." Moreover, in Beijing, designated hospitals for civil servant physical examinations are trained every year, and "under normal circumstances, candidates will not be easily judged as unqualified."
He also said that for individual diseases, it is indeed necessary to make adjustments based on the development of existing diagnosis and treatment technologies. "But how to make the adjustments specifically may still require a comprehensive demonstration by an expert group. It should not only be considered from the perspective of a certain disease, but also a comprehensive assessment from the overall professional adaptability of civil servants, rather than having one person represent a certain point of view."
Liu Junzhen, a professor at the Department of Human Resources Management at Nankai University, told China Youth Daily and China Youth Network reporters that public officials, as a specific group whose "employer" is the state, have certain particularities of their own. In recruitment and employment, "the considerations may not simply come from the duties and responsibilities of the job itself," so it is understandable that they have specific physical examination standards.
In fact, for patients, the greater obstacle to employment comes from the abuse of the "Physical Examination Standards" for civil servants. China Youth Daily and China Youth Network reporters searched the recruitment information of various enterprises and institutions and found that almost all enterprises and institutions refer to the "Physical Examination Standards" for civil servants in their physical examination standards.
This is partly due to the lack of standards for non-civil servant physical examinations. On the other hand, Liu Junzhen believes that this may reflect that employers have not conducted a sufficiently systematic and rigorous analysis of the position itself from the perspective of recruitment management.
"Strictly speaking, the job qualification requirements require detailed information collection on the job content, environment, and personnel involved in the job, and a rigorous job analysis is conducted to objectively determine the most basic qualification requirements for job candidates," Liu Junzhen said. "But in fact, our companies rarely have this step, and most of them even entrust third-party intermediaries to complete the job description."
On the other hand, for employers, "cost" is always the main consideration, "to some extent, this is also a kind of corporate fairness." For example, a personnel staff member of a public institution told the reporter of China Youth Daily and China Youth Network that although he also believed that relaxing the physical examination standards was reasonable in terms of social justice, as an employer, he had faced work problems caused by employees' physical problems many times, and the company's annual health expenses for employees were also relatively large, which made him inevitably cautious when recruiting. Moreover, when faced with multiple candidates, it is reasonable for the employer to "select the best from the best."
There are many reasons why employers lack motivation to adjust the requirements for pre-employment physical examinations. Coordinating "corporate fairness" and "social fairness" requires some external restrictions, such as setting up special anti-discrimination laws and anti-discrimination agencies. More importantly, Liu Junzhen believes that it is necessary to enhance the motivation of enterprises to make adjustments from within, "which may eventually return to a market logic."
(At the request of the interviewee, Li Yu is a pseudonym in this article)
(Source: China Youth Daily)
