China's HR ministry tackles work-related injury definition

PRC laws are quite clear on compensation, but the issue lies in whether an incident is deemed to be within the limits of 'work'. Around 90% of cases are straightforward, but a handful involving certain activities that do not occur during typical working hours, like team-building trips and annual company dinners, can be controversial, said Gordon Feng, a partner at JunHe in Shanghai.

For instance, there was a recent case where an employee fell while having a shower in his hotel room during a business trip. The Beijing intermediate court actually ruled that this was a work-related injury, Feng explained.

Reasonable route to/from work

The SPC and MOHRSS both state what are considered reasonable places/routes, hours and reasons—the three factors for determining the extent to which an injury is related to work. But while the SPC provided a number of concrete examples for commuting, the MOHRSS' new Opinions have left 'reasonable route' simply at that.

“The SPC provides a broader scope for defining travel from home to work or vice versa,” Liang said. “The Provisions include going to, or coming from, a place an employee normally lives or a domicile arranged by the company, or the residence of a spouse, parents or children. They even include any reasonable activities necessary for normal life, such as stopping by the supermarket for groceries on the way home. Getting injured under any of these circumstances is regarded as work related by the SPC,” she said.

However, in the new Opinions, the clause seems quite simple and straightforward, Liang said. It states that if an employee is injured on a reasonable route on the way to or back from work, this should be regarded as work-related travel.

“It seems the ministry is trying to narrow the scope of reasonable route and avoid treating it too broadly so that fewer cases get challenged in court,” said Liang, adding that this would make it more likely for the labor department to dismiss a work injury claim.

Feng sees the wording as very general and said that the provision could, in fact, be interpreted more broadly by the bureaus.

The labor department isn't so flexible, he said, adding that “being the watchdog, it has a duty to issue work-related injury certifications on a reasonable basis.”

Meanwhile, the courts are more inclined to take the employees' view. “The reality is that if a worker suffers a severe injury and receives no financial support, he may have difficulty in finding a new job and may even face hardship in living a normal life,” Feng said.

Application timing

The MOHRSS also addresses the time limit issue.

Under PRC law, an employer must apply for a work injury certification within one month of the incident. If it doesn't submit, the employee can file a claim within a year. The ministry confirms that any time lost by the employee due to 'loss of freedom' (e.g. arrested or held by the authorities) will not be counted towards the deadline.

“The SPC has taken a broader view on this, as the simplified yet more controversial clause provided in these new Opinions sets a limitation for the employee as they suggest that the employee has to satisfy the condition of having lost his freedom in order to qualify for the time period exemption,” said Liang.

Labor dispatch

The Opinions state that insurance for any injuries to dispatch workers must be paid by the dispatching agency. “Companies need to be aware of this clause so they know who is responsible for paying work-related injury insurance for temporary workers,” Liang said.

There is usually an agreement between the accepting company that uses the dispatch workers and the agency that provides them, where if any work injuries occur, the latter files the application and handles the issue as the employer, while the company later provides compensation.

Where to pay

The Opinions also clarify that if a company is registered in one city and operates in another, it must pay work-related injury insurance for employees in the place of registration; an enterprise registered in Beijing that operates factories and has workers in Shanghai is required to file the application at the Beijing bureau.

Compliance and social insurance

“Companies need to take every measure to increase safety standards in the workplace in order to prevent any injury,” said JunHe's Feng. Any injury that occurs must be reported to the labor bureau, he added.

Also, given that the concept of reasonable route is still open to debate, companies should have every employee notify them of where they live to make it easier to judge whether a commute is reasonable.

A company that has paid social insurance (which includes that for work-related injury) for the employee is usually more likely to file an application as the compensation can be paid through that pool, said Liang.

But companies that haven't properly contributed must pay up according to legal work-related injury standards anyway, so they may prefer to seek a settlement with the employee, she explained.

Many companies do not pay social insurance, but when incidents like this occur, all the liabilities fall on them, said Feng.

By Katherine Jo

中国人力资源部近期着手解决国内的一项关键雇佣纠纷问题，向劳工部门提供了有关如何确定损伤是否属于工伤的指导准则。

人力资源和社会保障部于 2016 年 3 月 28 日发布《关于执行〈工伤保险条例〉若干问题的意见（二）》（以下称为“意见”），引发了法律界的热烈讨论和不同反应。部分律师表示此意见旨在缩小定义范围以减少诉讼，而还有些执业者则认为这提供了更大的自由裁量解释权。此意见与最高人民法院2014 年发布的《关于审理工伤保险行政案件若干问题的规定》（以下称为“规定”）具有差异。

最高人民法院的规定更关注法院应如何处理工伤案件和争议工伤证明，而人社部的意见则旨在指导劳工部门如何确定损伤是否属于工伤。

“劳工部门将第一手处理此类问题，”金杜律师事务所北京雇佣问题合伙人梁燕玲说道，“当员工在法规规定的工作范围内受伤，雇主或员工向劳动局提起主张，进而由劳动局确定是否授予工伤证明。这一流程可能颇具挑战性，而且任一方均可能向法院起诉。”

中国法律对于赔偿方面规定明确，但问题在于事件是否视为属于“工作”范畴。君合律师事务所上海合伙人冯明浩表示，约 90% 的此类案例较为简单明了，但部分案例所涉活动并未发生在典型工作时间，例如团队建设旅行和年度公司聚餐，这可能会产生争议。

例如，在一起近期案例中，员工在因商务出差入住酒店后，淋浴时跌倒。冯明浩解释道，北京中级法院确实裁定这属于工伤。

合理的上下班路线

最高人民法院和人社部都规定了合理地点/路线、时间和理由的定义，这三项正是确定受伤与工作有多大程度上关连的要素。但虽然最高人民法院提供了多个明确通勤实例，但人社部的新意见中仍然简单地保留了“合理路线”这一说法。

“最高人民法院规定的上下班范围更广泛，”梁燕玲表示，“规定中包括以员工正常居住地点、公司安排的住宿或者配偶、父母或子女居住地为出发地或目的地的路线。其中甚至包括基于日常生活的任何合理必要活动，例如在下班途中前往超市购买生活用品。最高人民法院指明，在任何此类情况下受伤均视为工伤。

梁燕玲指新意见中的条款则相对较为简单明了。其中规定，如果员工在合理的上下班路线中受伤，则应视为工伤。

梁燕玲认为，看起来人社部想要缩小合理路线的定义范围，以避免过于宽泛的理解，从而减少提起法律程序的案件数，但这会导致劳工部门更倾向于驳回工伤索赔。

冯明浩则认为此表述较为宽泛，劳动局实际上反而可能更广泛地理解此规定。

他表示，劳工部门的处理反应并不灵活，而且“作为监察部门，其有义务合理签发工伤证明。”

与此同时，法院也更偏向于员工。“事实上，如果员工遭受严重伤害且未获得任何资金支持，可能很难找到新工作，甚至可能难以恢复正常生活， ”冯明浩说道。

申请时限

人社部还解决了时限问题。

根据相关中国法律，雇主必须在事件发生的一个月内申请工伤证明。如果雇主未提交申请，员工可在一年内提起索赔。人社部确认，员工因为“失去自由”（例如，遭到当局机构逮捕或拘留）而错过的时间不计入提交时限。

“最高人民法院放宽了相关范围，而新意见中简化但更具争议性的条款则对员工设下限制，要求员工必须符合失去自由的条件定义才能获得时限豁免，”梁燕玲表示。

劳务派遣

此意见指出，针对派遣劳工的任何受伤保险应由派遣机构支付。“公司需要了解此条款，以明确由谁来为临时员工支付工伤保险费用。”梁燕玲说道。

而通常按照使用派遣劳工的公司与提供劳工的派遣机构之间达成的协议，如果发生任何工伤，由后者作为雇主提出申请并处理相关事宜，并由前者在之后提供赔偿。

支付地点

此意见还指明，如果公司在某市注册且在另一市运营，则必须在注册地为员工支付工伤保险；而且举例而言，在北京注册且在上海运营工厂和雇佣员工的企业应向北京劳动局提交申请。

合规和社会保险

“公司需要竭力提升工作场所的安全标准，以防止出现任何受伤，”君合的冯明浩说道，“发生的任何受伤事件均须向劳动局报告。”

而且，由于合理路线概念仍存在争议，公司应要求所有员工告知居住地点，以便评估通勤路线是否合理。

梁燕玲认为，已为受伤员工支付工伤保险等社保的公司通常更愿意提交申请，因为赔偿金可通过该费用池支付。

她解释，未适当缴费的公司则必须按照法定工伤标准支付更高费用，因此可能倾向于与受伤员工达成和解。

冯明浩表示，许多公司未缴纳社保费用，因此将在发生工伤事件时承担所有责任。

（作者：赵修敏）

The Chinese ministry of human resources recently attempted to address a key issue of employment disputes in the country, providing labor departments guidelines on how they should determine if an injury is work related or not.

The Opinions on Several Issues Concerning the Implementation of the <Regulations for Work-related Injury Insurance> (2) (Opinions), released by the Ministry of Human Resources and Social Security (MOHRSS) on March 28, drew contrasting reactions from lawyers. Some said that the Opinions seek to narrow definitions to avoid litigation, while others said they allow more discretionary interpretation. They drew comparisons with the Supreme People's Court (SPC)'s 2014 Provisions on Several Issues Concerning the Trial of Administrative Work-related Injury Insurance Cases (Provisions).

While the SPC's Provisions focus more on how the courts should handle work-related injury cases and contested certifications, the MOHRSS' Opinions are aimed at guiding the labor departments on determining whether an injury is actually related to work.

“The labor department has the first voice in this issue,” said Linda Liang, a Beijing-based employment partner at King & Wood Mallesons. “When an employee is injured within the regulatory scope of work, the employer or employee files a claim to the bureau, which will decide whether to grant a work-related injury certification. This can be challenged and taken to court by either party.”

PRC laws are quite clear on compensation, but the issue lies in whether an incident is deemed to be within the limits of 'work'. Around 90% of cases are straightforward, but a handful involving certain activities that do not occur during typical working hours, like team-building trips and annual company dinners, can be controversial, said Gordon Feng, a partner at JunHe in Shanghai.

For instance, there was a recent case where an employee fell while having a shower in his hotel room during a business trip. The Beijing intermediate court actually ruled that this was a work-related injury, Feng explained.

Reasonable route to/from work

The SPC and MOHRSS both state what are considered reasonable places/routes, hours and reasons—the three factors for determining the extent to which an injury is related to work. But while the SPC provided a number of concrete examples for commuting, the MOHRSS' new Opinions have left 'reasonable route' simply at that.

“The SPC provides a broader scope for defining travel from home to work or vice versa,” Liang said. “The Provisions include going to, or coming from, a place an employee normally lives or a domicile arranged by the company, or the residence of a spouse, parents or children. They even include any reasonable activities necessary for normal life, such as stopping by the supermarket for groceries on the way home. Getting injured under any of these circumstances is regarded as work related by the SPC,” she said.

However, in the new Opinions, the clause seems quite simple and straightforward, Liang said. It states that if an employee is injured on a reasonable route on the way to or back from work, this should be regarded as work-related travel.

“It seems the ministry is trying to narrow the scope of reasonable route and avoid treating it too broadly so that fewer cases get challenged in court,” said Liang, adding that this would make it more likely for the labor department to dismiss a work injury claim.

Feng sees the wording as very general and said that the provision could, in fact, be interpreted more broadly by the bureaus.

The labor department isn't so flexible, he said, adding that “being the watchdog, it has a duty to issue work-related injury certifications on a reasonable basis.”

Meanwhile, the courts are more inclined to take the employees' view. “The reality is that if a worker suffers a severe injury and receives no financial support, he may have difficulty in finding a new job and may even face hardship in living a normal life,” Feng said.

Application timing

The MOHRSS also addresses the time limit issue.

Under PRC law, an employer must apply for a work injury certification within one month of the incident. If it doesn't submit, the employee can file a claim within a year. The ministry confirms that any time lost by the employee due to 'loss of freedom' (e.g. arrested or held by the authorities) will not be counted towards the deadline.

“The SPC has taken a broader view on this, as the simplified yet more controversial clause provided in these new Opinions sets a limitation for the employee as they suggest that the employee has to satisfy the condition of having lost his freedom in order to qualify for the time period exemption,” said Liang.

Labor dispatch

The Opinions state that insurance for any injuries to dispatch workers must be paid by the dispatching agency. “Companies need to be aware of this clause so they know who is responsible for paying work-related injury insurance for temporary workers,” Liang said.

There is usually an agreement between the accepting company that uses the dispatch workers and the agency that provides them, where if any work injuries occur, the latter files the application and handles the issue as the employer, while the company later provides compensation.

Where to pay

The Opinions also clarify that if a company is registered in one city and operates in another, it must pay work-related injury insurance for employees in the place of registration; an enterprise registered in Beijing that operates factories and has workers in Shanghai is required to file the application at the Beijing bureau.

Compliance and social insurance

“Companies need to take every measure to increase safety standards in the workplace in order to prevent any injury,” said JunHe's Feng. Any injury that occurs must be reported to the labor bureau, he added.

Also, given that the concept of reasonable route is still open to debate, companies should have every employee notify them of where they live to make it easier to judge whether a commute is reasonable.

A company that has paid social insurance (which includes that for work-related injury) for the employee is usually more likely to file an application as the compensation can be paid through that pool, said Liang.

But companies that haven't properly contributed must pay up according to legal work-related injury standards anyway, so they may prefer to seek a settlement with the employee, she explained.

Many companies do not pay social insurance, but when incidents like this occur, all the liabilities fall on them, said Feng.

By Katherine Jo

中国人力资源部近期着手解决国内的一项关键雇佣纠纷问题，向劳工部门提供了有关如何确定损伤是否属于工伤的指导准则。

人力资源和社会保障部于 2016 年 3 月 28 日发布《关于执行〈工伤保险条例〉若干问题的意见（二）》（以下称为“意见”），引发了法律界的热烈讨论和不同反应。部分律师表示此意见旨在缩小定义范围以减少诉讼，而还有些执业者则认为这提供了更大的自由裁量解释权。此意见与最高人民法院2014 年发布的《关于审理工伤保险行政案件若干问题的规定》（以下称为“规定”）具有差异。

最高人民法院的规定更关注法院应如何处理工伤案件和争议工伤证明，而人社部的意见则旨在指导劳工部门如何确定损伤是否属于工伤。

“劳工部门将第一手处理此类问题，”金杜律师事务所北京雇佣问题合伙人梁燕玲说道，“当员工在法规规定的工作范围内受伤，雇主或员工向劳动局提起主张，进而由劳动局确定是否授予工伤证明。这一流程可能颇具挑战性，而且任一方均可能向法院起诉。”

中国法律对于赔偿方面规定明确，但问题在于事件是否视为属于“工作”范畴。君合律师事务所上海合伙人冯明浩表示，约 90% 的此类案例较为简单明了，但部分案例所涉活动并未发生在典型工作时间，例如团队建设旅行和年度公司聚餐，这可能会产生争议。

例如，在一起近期案例中，员工在因商务出差入住酒店后，淋浴时跌倒。冯明浩解释道，北京中级法院确实裁定这属于工伤。

合理的上下班路线

最高人民法院和人社部都规定了合理地点/路线、时间和理由的定义，这三项正是确定受伤与工作有多大程度上关连的要素。但虽然最高人民法院提供了多个明确通勤实例，但人社部的新意见中仍然简单地保留了“合理路线”这一说法。

“最高人民法院规定的上下班范围更广泛，”梁燕玲表示，“规定中包括以员工正常居住地点、公司安排的住宿或者配偶、父母或子女居住地为出发地或目的地的路线。其中甚至包括基于日常生活的任何合理必要活动，例如在下班途中前往超市购买生活用品。最高人民法院指明，在任何此类情况下受伤均视为工伤。

梁燕玲指新意见中的条款则相对较为简单明了。其中规定，如果员工在合理的上下班路线中受伤，则应视为工伤。

梁燕玲认为，看起来人社部想要缩小合理路线的定义范围，以避免过于宽泛的理解，从而减少提起法律程序的案件数，但这会导致劳工部门更倾向于驳回工伤索赔。

冯明浩则认为此表述较为宽泛，劳动局实际上反而可能更广泛地理解此规定。

他表示，劳工部门的处理反应并不灵活，而且“作为监察部门，其有义务合理签发工伤证明。”

与此同时，法院也更偏向于员工。“事实上，如果员工遭受严重伤害且未获得任何资金支持，可能很难找到新工作，甚至可能难以恢复正常生活， ”冯明浩说道。

申请时限

人社部还解决了时限问题。

根据相关中国法律，雇主必须在事件发生的一个月内申请工伤证明。如果雇主未提交申请，员工可在一年内提起索赔。人社部确认，员工因为“失去自由”（例如，遭到当局机构逮捕或拘留）而错过的时间不计入提交时限。

“最高人民法院放宽了相关范围，而新意见中简化但更具争议性的条款则对员工设下限制，要求员工必须符合失去自由的条件定义才能获得时限豁免，”梁燕玲表示。

劳务派遣

此意见指出，针对派遣劳工的任何受伤保险应由派遣机构支付。“公司需要了解此条款，以明确由谁来为临时员工支付工伤保险费用。”梁燕玲说道。

而通常按照使用派遣劳工的公司与提供劳工的派遣机构之间达成的协议，如果发生任何工伤，由后者作为雇主提出申请并处理相关事宜，并由前者在之后提供赔偿。

支付地点

此意见还指明，如果公司在某市注册且在另一市运营，则必须在注册地为员工支付工伤保险；而且举例而言，在北京注册且在上海运营工厂和雇佣员工的企业应向北京劳动局提交申请。

合规和社会保险

“公司需要竭力提升工作场所的安全标准，以防止出现任何受伤，”君合的冯明浩说道，“发生的任何受伤事件均须向劳动局报告。”

而且，由于合理路线概念仍存在争议，公司应要求所有员工告知居住地点，以便评估通勤路线是否合理。

梁燕玲认为，已为受伤员工支付工伤保险等社保的公司通常更愿意提交申请，因为赔偿金可通过该费用池支付。

她解释，未适当缴费的公司则必须按照法定工伤标准支付更高费用，因此可能倾向于与受伤员工达成和解。

冯明浩表示，许多公司未缴纳社保费用，因此将在发生工伤事件时承担所有责任。

（作者：赵修敏）