The Supreme People’s Court has issued further guidance on work-related injury through the following Regulations: The Provisions of the Supreme People’s Court on Several Issues concerning Trial of Administrative Cases Relating to Work-related Injury Insurance.
The Regulations took effect on 1 September 2014. They provide guidance on who is liable for an injury, what constitutes a work-related injury and clarify the meaning of “commuting”.
Who will be liable?
In normal circumstances, where a simple employer-employee relationship exists and the employee has no other employers and has not been assigned or contracted to a third party, the employer will be liable for the work-related injury. However, the Regulations have also sought to clarify less conventional situations:
- Where an injured employee works for two or more employers, the employer they are working for when the work-related injury occurs will be liable.
- Where an injured employee has been supplied by an employment agency, the agency will be liable.
- Liability will remain with the contracting employer if it unlawfully subcontracts the entity for which the employee works to another entity or individual that is not qualified to be an employer. However, the employer held liable may be able to seek compensation from the entity the employee was working for at the time.
- Where an individual carries out business by becoming affiliated with an entity, and a work-related injury occurs to an employee of the individual, liability rests with the entity to whom the individual is affiliated with. However, the affiliated entity may be able to seek compensation from the individual acting as an employer.
What constitutes a work-related injury?
Under the Regulations, an injury sustained by an individual in any of the following four situations will be classed as a work-related injury:
- Any injury in the workplace during normal working hours that neither the employer nor social authority can prove was not work related.
- Any injury during an activity organised by the employer or an entity the employee has been assigned to by their employer. This will include activity on business trips such as work, study and work-related entertaining. However, if the activity is not related to work, even whilst on a business trip, the employer will not be liable.
- Any injury during working hours whilst travelling within a reasonable area to cover different workplaces relevant to the employee’s duties.
- Any other injury during working hours which is due to causes related to performing work duties within a reasonable area of the workplace.
The meaning of “commuting”
An injury which is sustained when the employee is commuting can also be classed as a work-related injury provided the journey takes place within a reasonable time period using a reasonable route. The Regulations confirm that travel between work and the following locations will constitute commuting:
- the employee’s home
- the employee’s habitual residence
- the employers dormitory
- the home of the employee’s spouse, parents or children
A journey may still qualify as commuting notwithstanding that the employee carries out other necessary day to day or work-related activities at the same time. The inclusion of the word “reasonable” allows for a wide interpretation of what may be included within an employee’s commute. For example, if an employee goes to the market to shop or collects children from school on the way home from work, they are still likely to be treated as commuting.
In light of these changes, employers should check their work-injury assessment policies to make sure they remain compliant with the law.
The Regulations do help clarify certain matters. However, there remain issues which are yet to be ironed-out, such as where liability falls if an employee is injured when leaving one place of work to go to a second job.