How do I differentiate between a work-related injury and one that is not?
Under the PRC law (i.e., the Work Related Injury Insurance Regulations, as promulgated on 27 April 2003 and amended on 20 December 2010), generally, if an employee receives an injury that falls within any of the following categories, it is determined to be work-related:
- The employee is injured when working on work premises during working hours;
- The employee is injured when handling preparatory or end-of-work matters on work premises, before or after his/her working hours;
- The employee's injury is attributable to violence or an accident arising from his/her performance of work duties during working hours on work premises;
- The employee suffers from an occupational disease (i.e., a disease suffered by the employee arising from his/her exposure to dust, or radioactive or other poisonous or hazardous substance, while at work);
- The employee is injured or his/her whereabouts become unknown after an accident during a work-related trip;
- The employee's injury is attributable to any traffic accident, or any city metro, ferry or train accident, for which the employee does not take the main responsibility, while travelling to and from work.
Apart from the above, if an employee receives an injury in the following circumstances, such injury is also deemed to be work-related:
- The employee dies immediately, or dies within 48 hours after emergency treatment for a disease suddenly arising during working hours on the work premises;
- The employee is injured when he/she is engaged in rescue and relief work or other activities for the protection of State or public interests.
Circumstances may also arise in which an employee, who has served in the army and has been granted a Disabled Soldier Certificate certifying his/her disability for wounds received in war or wounds arising from performance of his/her duty, suffers from a recurrence of such old wound while at work. In such circumstances, whether an employee's injury is determined to be work-related and granted the certificate of work-related injury is subject to the decision of the local Human Resources and Social Security Bureau based on the review of relevant application documents (e.g., application form for determination of work-related injury, labour contract, medical certificates).
What are my obligations as an employer in respect of the certification of a work-related injury as described above?
Within 30 days after the date on which the employee is injured or is diagnosed as suffering from an occupational disease, the employer should apply to the local Human Resources and Social Security Bureau in the city in which it has its employee enrolled under the social insurance scheme, to obtain a certificate that his/her injury or disease is (or is not) work-related.
If the employer fails to make such application within the prescribed time limit, then the employee (or his/her immediate family members) or the local union authority may also apply within one year after the date on which the employee is injured or is diagnosed to have suffered from an occupational disease.
What is the "penalty" for, or consequence of, not applying within the 30 days mentioned above?
The "penalty" or consequence depends on whether the employee's injury is determined to be work-related. If it is determined to be a work-related injury, then the employer is responsible for the relevant expenses incurred during such time limit and in relation to the employee's statutory entitlements under the Work Related Injury Insurance Regulations, which would otherwise have been borne by the local work-related injury insurance fund.
Does the employer owe the same obligations to apply for certification of a work-related injury for a consultant (as opposed to employee)?
Legally, the employer only owes such obligations to its employees.
However, if the injured consultant can prove that he/she was actually an employee (i.e., de facto employment exists) – for example, he/she signed an acknowledgement of the employee handbook and/or other company policies applicable to employees, or was required to report to and work under the supervision of a certain officer of the company, etc. – his/her application regarding work-related injury certification may be approved.