Preamble

According to Item 5 of Article 14 of the Regulations on Work Injury Insurance (revised in 2010), an employee shall be identified as suffering a work injury when the employee is injured or missing after an accident for work reasons when the employee is going out for work reasons .

Accordingly, can the injuries of employees caused in the process of business trips and travels arranged by the employers constitute work injuries? To address this issue, this article summarizes and analyzes the trial ideas of the courts in Shanghai by outlining relevant laws and regulations and published judgment documents in Shanghai.

1. Introduction

It can be noted from the plain language of Item 5 Article 14 of the Regulations on Work Injury Insurance that it is necessary to consider the “dual work-related reasons” to determine whether the injury suffered by an employee during the period of going out for work constitutes a work injury. It means that, on the one hand, the “reason for going out” shall be related to work. On the other hand, the “cause of injury” shall also be related to work.

1.1 How to Determine Whether the “Reason for Going out” Is Related to Work?

With regard to determine whether the “reason for going out” is related to work, Article 5 of Provisions of the Supreme People’s Court on Several Issues Concerning the Hearing of Administrative Cases of Work Injury Insurance (“Work Injury Insurance Provisions”) (Fa Shi [2014] No.9) listed the following three circumstances:

(1) The period during which an employee engages in activities related to job duties in a place other than the workplace upon assignment by his/her employer or due to work needs;

(2) The period during which an employee is assigned by the employer to study or attend a meeting outside the workplace;

(3) The period during which an employee engages in other activities outside the workplace due to work needs.

1.2 How to Determine Whether the “Cause of Injury” Is Related to Work?

As to determine whether the “cause of injury” is related to work, Article 5 of Work Injury Insurance Provisions does not enumerate the circumstances, but only lists one exception thereof: “Where an employee is injured due to engaging in personal activities unrelated to job duties or the study or meeting tasks assigned by the employer during the period when he/she is supposed to engage in work activities outside the workplace” shall not be deemed as a work injure, which means that “personal activities” are clearly excluded.

In this regard, the Supreme People’s Court also make a more detailed explanation in Article 6 of the “Understanding and Application of the Provisions of the Supreme People’s Court on Several Issues concerning the Hearing of Administrative Cases of Work Injury Insurance” (“Understanding and Application of the Work Injury Insurance Provisions”), which states that considering the “during the period of going out for work reasons” exists many unpredictable risks compared with those in the usual working course, it is unfair for an employee to assume those risks. Thus, “injury due to work” includes both the injuries directly related to the work and the injuries that occur in the course of carrying out work, such as injuries caused on-the-way , injury caused by the unsafe factors existing in accommodation, dining and other premises. Therefore, the “work-related reasons” here is a broad concept. Except any injury arising from any individual activity that is not related to the work or is not related to the outside study or meeting required by the employer, the injuries caused by other reasons shall be deemed as work injury.

2. Identification of Work Injury During the Business Trip

2.1 In Principle, the Injury Suffered during the Entire Business Trip Shall Be “Work Injury”

2.1.1 Injury Suffered During the Way of Business Trip Shall Be Work Injury

In the Appellate Case of Shanghai Chuangming Intelligent Shading Technology Co., Ltd. v. Human Resources and Social Security Bureau of Shanghai Jiading District on Work Injury Identification Dispute (Case No.: (2009) Hu 02 Zhong Xing Zhong No. 328), the employee took a business trip from Qingdao to Huangdao for work. In the evening of 13 November 2007, the employee was on the way back to the residence after completing the work and the employee was injured by a motor vehicle traffic accident along the Qiantangjiang Road to the University for the Aged on the morning of 14 November 2007.

In the case of Shanghai Laike Gas Cutting Machine Co., Ltd. v. Human Resources and Social Security Bureau of Shanghai Pudong New District on Cancellation of the Work Injury Identification Dispute (Case No.: (2012) Pu Xing Chu No. 237), the employee, upon the approval of the employer, took a business trip in Yangzhou from 22 September 2011 to 15 October 2011. On October 3 of the same year, the employee went to Nantong Valve Company to promote the products of the employer. After getting out of Nantong Valve Company, the employee suffered the traffic accident occurred at about 13:55 on the same day at the 9th section of Liuzhuang Village, Liuhuang Road, Gaoming Town, Rugao City, Jiangsu Province.

In the First-instance Administrative Judgment of Shanghai Kechuang Plastic Products Co., Ltd. v. Human Resources and Social Security Bureau of Shanghai Baoshan District, People’s Government of Shanghai Baoshan District on Labor and Social Security (Case No.: (2018) Hu 0115 Xing Chu No. 897), the employee took the company’s vehicle driven by a colleague to Changzhou for work assigned by the employer. After completing the work, the employee died suddenly on the way back to Shanghai.

In the abovementioned three cases, the courts in Shanghai all held that the injuries suffered by the employees on their way of business trips shall be regarded as work injuries. The basic idea that the courts held is that “going out for work” is different from the work in the workplace in a usual course, and the working time and workplace should be extended appropriately thereof. As such, the injuries that take place whenever it is on the way back from the workplace of business trip to the accommodation of the business trip or to a habitual residence, should be considered to constitute a work injury.

2.1.2 Injuries suffered in the process of accommodation shall be identified as work injury

In the First-instance Administrative Judgment of Shanghai Chenshijia Equipment Technology Service Co., Ltd. v. Human Resources and Social Security Bureau of Shanghai Jiading District, etc. on the Work Injury Identification Dispute (Case No.: (2016) Hu 0114Xing Chu No.9), the employee was found dead in the hotel room in the early morning on 10 November 2013 during the work in Kashgar. The court held that as long as the employee did not engage in personal activities irrelevant to his/her work when he/she is going out for work, the entire period of going out shall be recognized as working hours and work-related reasons and shall further be recognized as work injury.

In the Second-instance Administrative Judgment of Shanghai Gongyuan Electronic Technology Co., Ltd. v. Human Resources and Social Security Bureau of Shanghai Minhang District on Labor and Social Security, (Case No.: (2014) Hu 01 Zhong Xing Zhong No. 11), the employee went for a business trip delegated by the employer and died of sudden disease in the hotel provided by the employer on 29 November 2012. The court also learned that the employee would deal with the unfinished daily work in the hotel every evening. Accordingly, the court held that the working time of the employee during the business trip had a certain continuity, and the workplace had a certain degree of extensibility. Therefore, the working time during the business trip shall not be mechanically understood as the time of getting off from a company. Neither did the workplaces be considered only as the place within a company. To sum up, the rest period of the employee in the hotels shall be deemed to be within the working hours and workplace.

In the Appellate Case of Shanghai Anjing Industrial Co., Ltd. v. Human Resources and Social Security Bureau of Shanghai Qingpu District on Work Injury Identification Administrative Dispute (Case No: (2012) Hu 02 Zhong Xing Zhong No. 61), the employee was arranged by the employer to work at the construction site of a project in Kunshan and his left foot was scalded by boiled water while having a rest in the dormitory on the site on the evening of October 21, 2010. The court held that the employee was assigned to the Kunshan site by the employer and shall meet with the nature of “going out for work”. Considering the daily work and life on the work site were necessary for work, the employee’s rest in his dormitory at night did not exceed the scope of normal living needs. Therefore, it is not improper to identify the reasons why the employee is scalded by boiling water in the dormitory during the night is related to work.

It is inferred that in the process of business trip, if the employee suffers injuries during the accommodations, the courts in Shanghai also intend to determine that the “period of accommodation” and “place of accommodation” are also within the extension of “working time” and “workplace”. The injuries suffered during this period shall also be covered by the work injury insurance.

2.1.3 Injury suffered in the process of dining shall be identified as work injury

In the Second-instance Administrative Judgment of Shanghai Pingguang Building Decoration Engineering Co., Ltd. v. Human Resources and Social Security Bureau of Shanghai Jiading District on Labor and Social Security (Case No.: (2017) Hu 02 Xing Zhong No. 250), the employee was sent to the Suzhou Exhibition Hall by the employer to build the stage on 8 December 2015, and the employer did not provide lunch. At noon of that day, the injured employee and his colleagues walked to the nearby Hancheng Square to find a small restaurant for lunch, and a traffic accident occurred when they walked to the door of the Dio Coffee in Hancheng Square. The court held that as long as the employee did not engage in personal activities irrelevant to his/her work during the period of a business trip, the entire period of his/her business trip shall be deemed as working hours and work-related reasons. When the accident occurs, the employee is injured in a traffic accident while eating out, and lunch is a normal physiological need, the employee is injured in connection with the performance of his or her job duties within a reasonable area and time in order to continue the work after the lunch. Therefore, the injury suffered by the employee shall be determined as work injury.

It can be inferred that, similar to “accommodation”, “dining” is also an activity that satisfies employee’s normal physiological needs. During the business trip, “dining time” and “dining place” shall also be regarded as the extension of “working time” and “workplace”, which means that the injury suffered during this period shall also be identified as a work injury.

2.2 Exception: “Personal Activities” During Business Trip Shall not be Protected

2.2.1 “Living Time” During the Period of Long-term Dispatch Belongs to “Personal Activity” Time

Article 5 of the Opinions of the Ministry of Human Resources and Social Security on Several Issues concerning the Implementation of the Regulation on Work injury Insurance (II) stipulates that “where an employee is dispatched abroad due to work and has a fixed residence and specific schedule, he/she shall be deemed to be working normally at the locality when identifying work injury.

In the First-instance Administrative Judgment of Gao Jianxiu v. Human Resources and Social Security Bureau of Shanghai Yangpu District on Labor and Social Security (Case No.: (2017) Hu 0110 Xing Chu No. 123), the employee was assigned by the employer to Nanchang on a business trip from 8 November 2016 to 31 November 2017. At about 5:12 am on 17 November 2016, the employee died in a fire accident in the rented house. When analyzing whether the death of employee due to a fire accident shall be identified as a work injury, the court held that although the flexible working hour system was adopted for the employee during his work in Nanchang, there were reasonable distinctions between work and rest. That the employee was dead in the rented house due to fire accident of the electric bicycle in the corridor on a business trip in Nanchang at about 5 am did not comply with the identification of a work injury or being deemed as a work injury.

It can be inferred that in the case of long-term dispatch, the recognition of “working time” and “workplace” is different from the “short-term business trip”, and the “accommodation period” and “dining period” can no longer be included in the “working time”. From our understanding, the boundary between the work and life of the employee is relatively clear during the “long-term dispatch period”, and the schedule is relatively fixed. The difference between work performed during long-term dispatch and regular work is only made in the “place of work”. As such, the risk during the rest time is no longer steeply increased due to “business trip”. Therefore, the identification of “working time” and “workplace” shall be judged according to an employee’s normal daily routine.

2.2.2 Interests and Entertainments Shall Be “Personal Activities”

In the First-Instance Administrative Judgement of Hu Xiaojun v. Human Resources and Social Security Bureau of Shanghai Minhang District on Labor and Social Security (Case No.: (2016) Hu 0112 Xing Chu No. 138), during the period of business trip, the employee return to the hotel after completing the work assigned by the employer, leave the hotel to run after changing clothes, and get injured during the running. In this regard, the court held that the behavior of the employee going out for running during a business trip shall be regarded as the personal interests and habits of the employee. There was no evidence to prove that it was related to the work. Therefore, the injury suffered by the employee in the process of exercise is not a work injury.

As stated above, although the “working time” and “work place” of the employee during business trip will be extended and expanded to a larger extent than usual, Article 5 of the Work Injury Insurance Provisions also explicitly excludes “personal activities” from the scope of the protection of work injury, and the activities of interest in the aforesaid cases, as well as the typical non-work activities such as shopping and sightseeing , will be considered to be “personal activities” during the period of business trip and the injuries thus suffered shall not be considered as occupational injuries.

2.2.3 The Employer Shall Bear a Higher Burden of Proof.

In the First-instance Administrative Judgment of Shanghai Ericsson Electronics Co., Ltd. v. Human Resources and Social Security Bureau of Shanghai Jiading District on the Dissatisfaction of the Identification of Work Injury (case number: (2014) Jia Xing Chu No. 22), the employee was dispatched to Johannesburg, South Africa as the manager of the Financial Control Center by the employer from 16 August 2013 to 28 February 2014. At 6:43 (South Africa time) on 2 September 2013, Yan Zhuang called the office to make an appointment for a doctor for a sudden disease. At 10:10 (South Africa time) the medical staff arrived, and (South Africa time) Yan Zhuang was confirmed to be dead at 10:19. In this case, the Human Resources and Social Security Bureau proposed that the employee was out for work during his assignment in South Africa, and that the out-for-work period of the employee had certain specialties, among which working aboard was more special because the social habits, living environment and language communications of foreign countries were very different from those of China. Therefore, as long as there was no evidence to prove that the employee was engaging in private activities during the out-for-work period, the employee shall be considered as working in working time, at workplaces and on working position during this period. The court held that the employee was sent to work in South Africa because of his work, and it was more special than the general out-for-work situation, determining that the employee’s death for sudden disease during the work-aboard period constituting work injury is reasonable.

In the Second-instance Administrative Judgment of New Era Tongcheng (Shanghai) Cargo Transportation Co., Ltd. v. Human Resources and Social Security Bureau of Shanghai Putuo District on Labor and Social Security (Case No: (2014) Hu 02 Zhong Xing Zhong No. 223), the employee was sent to Xiamen for a business trip and were involved in a traffic accident in the evening of 18 June 2013. In this regard, the employer stated that it did not assign any work tasks to the employee on the day of the incident. At the night of the incident, the injured employee was out on the motorcycles driven by a staff of the local branch. Moreover, the traffic accident occurred at 10 pm at the place 8 kilometers away from the temporary residence of the employee, and the driving direction was opposite from his temporary residence. According to the test report, the employee had drunk alcohol, and should have already had dinner. Therefore, the employee’s death on the night was neither a cause of work nor a cause of normal physiological needs such as dining. Thus, it was wrong to identify the death of the employee was a work injury. The Human Resources and Social Security Bureau stated that the normal life of the employee during his stay in Xiamen was of a nature of work. The employer failed to prove that the employee was out for private affairs, so it was proper to identify it as a work injury. The court adopted the claim of the Human Resources and Social Security Bureau and finally identified the injury as the work injury.

As can be seen from the two cases above, although the injury suffered due to the “personal activity” during the business trip is not a work injury, the party who claims that the injury shall not be identified as a work injury (in most cases, the employers) shall bear a higher burden of proof on the proof of the employee engaging in “personal activity”. Even if the whereabouts of the employees are suspicious, the court will determine that the employee’s injury constitutes a work injury if the employee cannot be proved to be “out for private.”

3. The Identification of Work Injury During Collective Trip

Understanding and Application of the Work Injury Insurance Provisions published by the Supreme People’s Court specifies that “there is a big controversy to identify whether the injuries suffered by employees when participating in the activities organized by the employer or assigned by the employers organized by other companies are work injuries. We believe that if the employer mandates or encourages the employee to participate the collective activities, those activities can be considered as a part of work, which shall be in the reason of work, and the injury suffered therein shall be identified as a work injury.”

Therefore, the “mandatory” and “encouragement” to the activities of the employer are the criteria for judging whether it is a “work injury”.

3.1 Consideration from a Comprehensive View of the Trip: Whether It Is “Out for Work”

3.1.1 Collective trip activities with the nature of “pure entertainment” may not be considered as “Going out for work”

In the Second-instance Administrative Judgment of Yang Dongyang v. Human Resources and Social Security Bureau of Shanghai Qingpu District on Labor and Social Security (Case No.: (2017) Hu 02 Xing Zhong No. 160), the employer organized 10 staffs including the injured employee to participate in a 3-day tour from Fuchunjiang Small Three Gorges to Daqi Moutain and- Tonglu Linyao Wonderland on its own cost with the leading of the travel agency.

In the First-instance Administrative Judgment of Wang Benxiu v. Human Resources and Social Security Bureau of Shanghai Putuo District on Labor and Social Security (Case No.: (2016) Hu 7101 Xing Chu No. 203), the employer signed a travel contract with the travel agency to organize its staffs including the injured employee to travel to Anji, Zhejiang to visit the scenic spots such as Dazhuhai, Canglong Bai Waterfall and Baicha Valley Jiulong Gorge.

In the Second-instance Administrative Judgement of Zhang Yun v. the Human Resources and Social Security Bureau of Shanghai Zhabei District on Labor and Social Security (Case No.: (2015) Hu 02 Zhong Xang Zhong No. 264), the employer entered into a travel contract with the travel agency, which stated that the travel agency shall organize the staffs of the employer including the injured employee to travel to Zhangjiajie. The fee of the trip would be paid by the employer in the form of allowance.

In the First-instance Administrative Judgment of Lyu XX v. a Human Resources and Social Security Bureau, a Third-person Company on Labor and Social Security (case number: (2016) Hu 0116 Xing Chu No. 5), the employer organized its staffs including the injured employee to travel to Chongqing. The travel expenses such as airline tickets and hotels are covered by the employer.

In the First-instance Administrative Judgment of Jiang Hui v. Human Resources and Social Security Bureau of Shanghai Hongkou District, Shanghai Municipal Human Resources and Social Security Bureau on Labor and Social Security (Case No.: (2018) Hu 7101 Xing Chu No. 19), the employee volunteered to participate in the Wuzhen trip organized by the employer. The employee was injured in a traffic accident on the bus on his way back the next day.

In the above cases, the courts in Shanghai tend to hold that such “purely entertaining” trips have characters of “nature of employees’ welfare”, “not mandatory”, “not related to work”, and injuries suffered during these trips are not work injuries.

However, it should be noted that in recent years, courts in many regions hold a positive attitude toward whether the “purely entertaining” trips organized by the employers are “work-related” activities. In the influential case of Human Resources and Social Security Bureau of Xiangzhou District, Zhuhai v. Shi Pengpeng on Social Security Administrative Confirmation (Case No: (2014) Zhu Zhong Fa Xing Zhong No. 79), the employer issued a “Travel Notice”, and organized a trip from May 5th to 6th, 2013 for all employees. The location for the trip was Eastern Chinatown in Shenzhen. The employee was injured during the trip. In this regard, the Zhuhai Intermediate People’s Court of Guangdong Province held that “The collective activity of employees organized by the employer shall be identified as the company’s collective behavior rather than the employees’ self-interested behavior. The employer was the proponent, organizer, manager, provider of vehicles and expenses of the collective activities. The employees were always in the management of the organization of the employer, and they were always in a state of being managed during the collective activities. The purposes of the organization of the collective activities of the employees were to adjust the physical and mental health of employees, improve the enthusiasm of employees and strengthen cohesiveness. That the employer organized collective activities for the employee was the welfare to some extent. If employees suffered injuries during this period, they shall receive medical treatment and monetary compensation. The organizer shall be responsible for the entire collective activity process.”

In view of the existence of two completed opposite attitudes in the practice of identifying this matter, it is still necessary to issue relevant authoritative documents to form a consensus in practice.

3.1.2 Travel Activities with “Work Content” May Be Identified as “Going out for Work”

In the First-instance Administrative Judgment of Li Hongying v. Human Resources and Social Security Bureau of Shanghai Qingpu District on Labor and Social Security (Case No.: (2018) Hu 0118 Xing Chu No. 42), the employer issued the “Notice on Expanding Training Activity for Advanced Staffs of Safe Production, Energy Conservation and Environmental Protection” to the employees. The content of the activity was interaction and tour. The participants were the advanced staffs of safety production, energy conservation and environmental protection in 2016. Thereafter, the employer signed a travel contract with a travel agency and organized a two-day tour in Yuhang. The employee fell down and was injured during the tour. In the course of the trial, the court found that the reason for the employer to organize the tour in the name of the expanding training activity is for the purpose of examination and approval was to facilitate the procedure. What the employer actually organized was a "purely entertainment" trip, which was not related to work. The injury of the employee was not work injury during the process of trip.

In the First-instance Administrative Judgment of Tongjilong Foreign Exchange (China) Co., Ltd. V. Human Resources and Social Security Bureau of Shanghai Pudong New District, Shanghai Human Resources and Social Security Bureau on Labor and Social Security (Case No: (2018) Hu 0106 Xing Chu No. 140), the employer organized relevant employees to Dalian for activities, and the employee fell down during the activity. The court held that although the employer claimed that the activity was voluntarily registered, and the company did not mandate them to participate, in fact there was an arrangement for the 2016 annual summary meeting in the activity schedule organized by the employer. The place where the employee fell down was a place planed by the employer before departing. This activity shall be regarded as within the scope of the employee’s work. The employee participated in this activity in order to enjoy the company’s welfare and conducted activities according to the established arrangements of the employer during the activity, and was in a state of being managed. The employer, as the proponent, organizer, manager, and fund provider of the activity, shall be responsible for the entire collective activity process. Therefore, the activities that employee participated in shall be identified as an extension of “the period of going out on business, due to work reasons”

It can be seen from the above two cases that if the outside travel activities also include content related to the work such as “expanding training activities” and “annual summary meetings”, the court is more likely to hold that the travel activities organized by the employer meet with certain nature of mandatory and encouragement. Therefore, the period of trip is also more likely to be identified as “work-related travel period”.

3.2 Focusing on the Cause of the Incident: Whether It is Controlled by the Employer

3.2.1 Injuries Suffered in “Free Activities” and “Self-Funded Projects” Generally Do Not Constitute Work Injuries

In the Second-instance Administrative Judgement of Shanghai Sola Enterprise Management Consulting Co., Ltd. V. Human Resources and Social Security Bureau of Shanghai Putuo District, Shanghai Putuo District People’s Government on Refusing to Recognize the Work Injury Decision (Case No: (2019) Hu 03 Xing Zhong No. 67), the employee was drowned when participated in the self-funded project of snorkeling in Koh Samet, Thailand during the trip organized by the employer. The court held that the injury was not a work injury and analyzed that the snorkeling project which caused the death was obviously a high-risk tourism project. The employer did not force the employees to participate. What’s more, it had nothing to do with the work.

In the Second-instance Administrative Judgment of Yang Dongyang v. Human Resources and Social Security Bureau Shanghai Qingpu District on Labor and Social Security (Case No.: (2017) Hu 02 Xing Zhong No. 160), the employee accidentally slipped and drown when swimming in the process of free activities with colleagues to the vicinity of the farmhouse by the downstream of Luci River. The courts of first instance and second instance both held that it shall not be a work injury.

In the tour activities organized by the employer, there is usually some free time and self-funded items. Since the employees have strong autonomy in deciding whether to participate in such activities, the employers’ controlling over the employees in these activities will be greatly weakened. Therefore, if the employees suffer from injuries in these activities, it is generally not to be identified as work injuries.

3.2.2 Injuries Suffered During the Process “Arranged by the Employer” May Constitute a Work Injury

In the First-instance of Administrative Judgment of Tongjilong Foreign Exchange (China) Co., Ltd. V. Human Resources and Social Security Bureau of Shanghai Pudong New District, Shanghai Human Resources and Social Security Bureau on Labor and Social Security (Case No: (2018) Hu 0106 Xing Chu No.140), the employer organized activities of relevant employees to Dalian, and the employee fell down during the activity. The place where the employee fell down was also in the route arranged by the employer before departing. This activity shall be regarded as within the scope of the employee’s work. The employee participated in this activity in order to enjoy the company’s welfare and conducted activities according to the arrangement of the employer. The employee was under the management of the employer. The employer, as the proponent, organizer, manager, and fund provider of the activity, shall be responsible for the entire collective activity process.

Contrary to the “free activities” and “self-funded activities”, in the case that the employers arrange the itinerary for the employees, the employers have greater control over the employees. If employees carry out the itinerary as required by the employers and are injured as a result thereof, the injuries shall be considered as work injuries.

4. Conclusion

After outlining the above-mentioned public cases, combining with the “work-related reasons” mentioned in the in the preceding paragraph, the trial ideas of the courts in Shanghai in identifying work injury in the course of business trip and travel can be briefly summarized as follows:

4.1 Injury Suffered During the Business Trip

  • When determining the “reason for going out”, courts in Shanghai tend to determine that the business trip is a work-related activity.
  • When determining whether the “cause of injury” is related to work, courts in Shanghai tend to expand and extend the “workplace” and “working time” from the perspective of protecting employees, and then includes the period of being on the way, accommodation and dining into the scope of “work-related”. Only the “personal activities” are excluded, while the employer has a higher burden of proof for that.
  • The special situation of “long-term dispatch” shall be paid attention to.

4.2 Injury Suffered During Travel

  • The courts in Shanghai tend to consider the schedule, the purpose, the participants, and the cost-taking methods of the activities in a comprehensive manner.
  • When determining the “reason for going out”, the itinerary that is “purely entertaining” is more likely to be considered as “not related to work”. But there is no consensus on this issue in practice
  • When determining the “cause of injury”, it is necessary to pay attention to whether the employee’s itinerary is within the scope of the employer’s arrangement.