May 17 – In order to fully implement the “Regulations on Work-Related Injury Insurance (hereinafter referred to as ‘Regulations’),” China’s Ministry of Human Resources and Social Security (MOHRSS) released the “Opinions on Certain Issues Concerning the Implementation of the Regulations on Work-Related Injury Insurance (Renshebufa  No.34, hereinafter referred to as the ‘Opinions’)” on April 25, 2013, which clarifies several issues regarding the implementation of the Regulations. Detailed information can be found below.
Determination of several issues under the Regulations
According to the Regulations, an employee shall be determined as having a work-related injury if he or she is injured during a work-related trip. The Opinions state that the following factors shall be taken into consideration when determining the period of a work-related trip:
- Whether the employee is assigned by his or her employer to take the trip
- Whether the employee’s accidental injury is caused by work-related reasons
The Regulation provides that an employee shall not be deemed as suffering from a work-related injury if the employee:
- Gets injured from intentionally committing a crime
- Gets injured as a result of intoxication or drug abuse
“Intentionally committing a crime” shall be determined based on valid legal instruments or conclusive opinions from judicial authorities.
“Intoxication or drug abuse” shall be determined based on legal instruments issued by the relevant authorities or valid verdicts rendered by the People’s Court. Where the aforementioned evidence is unavailable, determination may be made based on relevant evidence.
Legal responsibility for illegal subcontracting
Where an eligible contractor, in violation of laws and regulations, sub-contracts its business to an ineligible organization or natural person, and the workers employed by such organizations or natural persons have been injured or died in the course of their service, the eligible contractor shall assume the insurance liability resulting from the work-related injury of such employees.
Determination of work-related injury
Where an administrative department of social insurance, after accepting an application for work-related injury determination, finds the labor relationship thereof disputable and is unable to be ascertained, it shall inform the party concerned to apply for arbitration with the arbitration commission of labor and personnel disputes.
Payment of disability allowance
Where a person has been diagnosed with an occupational disease after leaving a post that exposes individuals to hazardous conditions consistent with such a disease, he or she may apply for the determination of work-related injury within one year since the day of such diagnosis, and the administrative department of social insurance shall accept such applications if:
- The person has not engaged in a post that exposes them to occupational disease hazards after he or she completes the retirement formalities.
- The person has not engaged in a post that exposes them to occupational disease hazards after the expiration of his or her labor contract.
After the determination, if the person referred to in Item (1) of the preceding paragraph is entitled to a lump-sum disability allowance, such allowance shall be calculated and paid based on the average salary in the 12 months before his or her retirement, or the average pension in the 12 months before the diagnosis of the occupational disease, whichever is higher. Where the person referred to in Item (2) of the preceding paragraph has been officially diagnosed with disability ranging from level 1-10 and is therefore entitled to relevant benefits based on his or her salary as provided in the Regulations, such benefits shall be calculated and paid based on his or her average salary in the 12 months prior to the termination of his or her labor contract.
In addition, various benefits paid from the work-related injury insurance fund shall be paid as required in the Regulations, and long-term benefits shall not be paid in a lump-sum way.
Dezan Shira & Associates is a specialist foreign direct investment practice, providing corporate establishment, business advisory, tax advisory and compliance, accounting, payroll, due diligence and financial review services to multinationals investing in emerging Asia. Since its establishment in 1992, the firm has grown into one of Asia’s most versatile full-service consultancies with operational offices across China, Hong Kong, India, Singapore and Vietnam as well as liaison offices in Italy and the United States.
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