The Ministry of Human Resources and Social Security promulgated the Opinions on Several Issues Relating to the Implementation of the Regulations on Work Injury Insurance (II) (Ren She Bu Fa  No.29，hereinafter referred to as “Opinions (II)”), aiming to clarify a number of specific problems arising from implementing the Regulations of the Work Injury Insurance. We interpret certain essential clauses thereof as follows:
1. The principle of managements in the circumstance where employees at or above statutory retirement age suffer from work injury.
The first paragraph of Article 2 of the Opinions (II) provides that “[w]here a worker who has attained or exceeded statutory retirement age, but has not completed retirement formalities or enjoyed urban employees’ basic pension insurance benefits pursuant to the law suffers an accident injury or an occupational illness during his/her employment with his/her original employer, the employer shall bear the work injury insurance liability pursuant to the law.”
The above provision is an extension of the Answer to Whether or not the Regulations on Work Injury Insurance is Applicable for the Migrant Workers in Cities Above Statutory Retirement Age who Have Been Injured or Died in the Workplace (Xing Ta Zi  No. 10, hereinafter referred to as the “Answer”), issued by the Supreme People’s Court as of March 17, 2010. The aforesaid the Answer explicitly states that “[t]he Regulations on Work Injury is applicable for the employed migrant workers above statutory retirement age in cities who have been injured or died due to accidents arising from work during the work hours, and the relevant clauses thereof shall be used to determine the workplace injury.” The Opinions (II), consistent with the approach in the Answer, extend the scope of legally protected persons to all the workers who have attained or exceeded the statutory retirement age.
It is worth noting that the judicial practice in certain areas and cities explicitly indicate that the relationships established between the employer and those who attain the statutory retirement age shall be determined as service relations (such as in Beijing). This clause of the Opinions (II) lays aside the act of distinguishing between labor relations and service relations, but focuses on bringing the workers who attain or exceed the statutory retirement age into the protection category of work injury insurance, in order to grant them the greatest protection.
2. The determination of “newly incurred expenses” paid from the work injury insurance fund after the employers make retrospective contribution of work injury insurance premiums.
The third paragraph of Article 62 of Regulations on Work Injury Insurance provides that: “[u]pon participation in work injury insurance by the employer and retrospective contribution of work injury insurance premiums and late payment fine, the work injury insurance fund and the employer shall make payment for newly incurred expenses pursuant to the provisions of these Regulations.” The range of the “newly incurred expenses” paid by the work injury insurance fund had been treated differently from observing the judicial practice in different places, prior to the promulgation of Opinions (II). Article 3 of the Opinions (II)unequivocally list the items of expense which could be disbursed from the work injury insurance fund, from two aspects: injury and death due to accidents arising from work, avoiding the confusion caused by the discretion of the judicial authorities in different places.
Even so, this clause is still using “after being insured” as a divide point of the “newly incurred expenses”. For situations that “paying the work injury insurance premium this month and effective the following month” in certain areas and cities, Opinions (II) does not explicitly regulate that who shall be responsible for the expenses incurred during the period that the insurance premium is just being paid, but the insurance has not become effective. We hold the opinion that in the case of laws and regulations are not clear, the employer might be required to be responsible for the expenses before the insurance become effective, since it is the employer’s fault that it did not pay the insurance contribution first.
3. Further clarification of determining the work injury in certain situations.
Article 4 to 6 of Opinion (II) further clarify that how to determine the work injury in certain situations. For instance, when the employee has been injured when participating in activities organized by the employer, injured under the circumstance of working overseas due to accidents arising from work, and injured “while commuting to or from work” provided in Article 14 of the Regulations on Work Injury Insurance, Opinion (II) provides further guidance to determine the work injury. In fact, the Ministry of Human Resources and Social Security issued these provisions from its own point of view, to provide further interpretation of the relevant provisions of the Provisions on Several Issues Relating to Trial of Work Injury Insurance Administrative Lawsuits promulgated by the Supreme People’s Court.
Even so, we hold the opinion that Article 4 of the Opinions (II) is still not very clear. This clause provides that “[w]here an employee is injured when he/she participates in activities organized by the employer or by another organization appointed by the employer, it shall be deemed as a work injury, unless he/she has participated in activities which are not work-related.” Prior to this provision, Article 4 of Provisions on Several Issues Relating to Trial of Work Injury Insurance Administrative Lawsuits states that “[w]here the social security administrative authorities certify the following as a work injury, the People's Court shall support the assertion: …(2) the employee is injured during his/her participation in activities organized by the employer or by another organization assigned by the employer;…” By contrast, the Opinions (II), on the basis of repeating the above-mentioned Supreme People’s Court’s rules, particularly added “unless … participated in activities which are not work-related”. However, the Opinions (II) does not explicitly indicate the specific standards for determining the “work-related” activities, which might result in further confusion when executing this clause of Opinions (II) in practice.
4. The place of work injury insurance participation and jurisdiction when involving the cross-region situations
According to Article 6 of Order of the Ministry of Labor and Social Security on Promulgation of the Tentative Rules for Administration of Social Insurance Registration, “[t]he territorial principle shall be adopted in social insurance registration.…The location of social insurance registration for interregional payers shall be determined by relevant regional authorities through consultation. If there are different opinions, the location shall be determined by a Social Insurance Agency at a higher level.” Based on such provision, for employer who has not participated the work injury insurance in its registration place, the first paragraph of Article 7 of the Opinions (II) directly states that the place of insurance participation shall be “at the place of manufacturing and business operation”, which makes it more convenient to determine and operate in practice.
For cross-regional work injury accidents, the third paragraph of Article 7 regulates the jurisdiction according to whether employees participate in the work injury insurance. Specifically, determination of the work injury and evaluation of labor capacity shall be done at the place of insurance participation, and the employees shall be entitled to work injury insurance claims pursuant to the provisions of the place of insurance participation; for the employees who have not been covered by the work injury insurance, the provisions at the place of “manufacturing and business operation” shall apply.
5. The option of the employee’s immediate family members when the employee, being determined with a disability degree of one to four, dies after the suspension-of-work-with-pay period.
Where an employee with a disability between grade one and grade four dies after the suspension-of-work-with-pay period, his or her immediate family members shall receive a funeral subsidy and the next-of-kin compensation from Work Injury Insurance Fund, and they can also receive a funeral subsidy and compensation from the Basic Endowment Insurance of Employees. For this situation where the immediate family members can collect such subsidy and compensation twice, the ways to solve this problem are different in various places. Article 1 of the Opinions (II) grants the employee’s immediate family members the right of choice between the Work Injury Insurance and the Basic Endowment Insurance of Employees, which provides clear guidance for the practice, and meanwhile avoids the waste of social resources due to the repeated collection.
In addition to the clauses mentioned above, the Opinions (II) further regulates certain common questions in the practice, such as certain procedural problems in the process of determining the work injury and so on (Article 8 to 10). Generally speaking, the Opinions (II) regulates some knotty problems in the practice, however, certain issues are still not very clear, which remains to be further defined and clarified in the judicial practice or subsequent regulations.