66.What are the entitlements for employees with work-related injuries or occupational diseases?

Answer: The entitlements for employees with work-related injury and occupational disease are collectively referred to work injury entitlements under employment law. Employers should treat all types of employees who suffer from work-related injuries and occupational disease equally, including casual employees and employees on irregular and general work hours.¹

The work injury entitlements include two parts: the first part is the entitlements related to the disability identified by the labor capacity appraisal, including compensations and employment relationship treatments. Please refer to What should we do upon the completion of the labor capacity appraisal for an employee with a work-related injury or an occupational disease? The second part is related to the entitlements of payments for employees’ injuries or illnesses, including the following parts:

The first is the wages for the paid work injury leave. Paid work injury leave is a period of leave for treating employees’ work-related injury or occupational disease while receiving the same pay as before the work-related injury. This paid period is also the upper limit of employers’ liability for work-related injuries or occupational diseases stipulated by law. During the paid work injury leave, employers must not refuse to grant work injury entitlements to the employees with work-related injuries and occupational diseases on the grounds of procedural requirements such as leave application in the company¡¯s system.²

The determination of the length of a paid work injury leave is an important factor affecting the treatment of the employee, and it is usually directly related to the severity of the injury or the illness and the method and progress of the treatment of the employee. The length of this period shall be determined by the labor capacity appraisal committee or the employer according to the medical certificate or in accordance with the provisions of the local classification catalogue of the paid work injury leave.³It is generally not exceeding 12 months and may be extended to 24 months under special circumstances.⁴The courts may decide the length of the paid work injury leave according to the injury, local regulations, and other circumstances in judicial proceedings, if the labor capacity appraisal committee or the employer has not determined the same.⁵

The wages of an employee during the paid work injury leave shall remain unchanged as the original wages and welfare benefits. The wage rate shall be determined based on the employee’s average wage from the 12 months prior to the work injury. At present, courts around the country have two approaches to determine the standard of the average wage. The first approach, held by some courts such as the Shenzhen Intermediate Court, is that the average wage does not include overtime wages.⁶The second approach, held by Jiangsu Provincial High Court and Guangzhou Intermediate Court, is that the average wage includes overtime wage. ⁷If the employee has worked for less than 12 months before the work injury, it shall be determined according to the average monthly wage of the actual work period or according to the employment contract. The original non-wage welfare benefits of employees, such as board and lodging, should remain unchanged.⁸

The second is the treatment of medical expenses for work injuries. As long as the employer has paid work injury insurance for employees, the work injury fund managed by the government will bear the medical expenses involved in work-related injury or occupational disease. This is the basic mechanism of work injury insurance system to protect and support employees who suffer from work-related injury and occupational disease incidents.

There are two issues in the practice of work injury medical expenses: the first is that some employers do not buy social insurance for their employees, including work injury insurance. In this case, the employer should bear the medical expenses that should have covered by Work Injury Insurance Fund.⁹The second is the problem of who should bear the expenses of medical items beyond the coverage of the Work Injury Insurance Fund in the medical expenses for the work injury. At present, the prevailing court decisions at the provincial high court level are that employers are not liable to bear the expenses; that is, the employees themselves who suffer from work-related injuries and occupational diseases shall cover the expenses.¹⁰However, there are also some opposite cases, such as the case of Xiao Haiyang before Xicheng District of Beijing in 2015, in which Judge Li Xi comprehensively analyzed that the liability for expenses beyond the scope of work injury insurance should be borne by the employer from the perspective of no-fault liability, tort law, and the principle of occupational disease liability for work injury. ¹¹The practice of employees bearing costs that are not reimbursed by Work Injury Insurance Fund causes significant injustice, and this problem should be solved through legislative amendments.

The third is the hospitalization food allowance. The employer shall be responsible for the payment of hospitalization food allowance to the employee with work-related injuries and occupational diseases. The amount to be paid is based on the days of hospitalization treatment of the employee and the local daily allowance standards. This local standard usually ranges from RMB 30 to 50 per day (for example, the standard of hospitalization food allowance in Guangzhou and Shenzhen is RMB 50 per day).

The fourth is the nursing fee during the paid work injury leave. Employers should be responsible for the care of employees who are unable in self care during the paid work injury leave. In practice, employers usually pay nursing fees instead. There are two practical problems in the payment of nursing fees: the first is that, since the condition for the payment of nursing fees is that employees suffering from work-related injuries or occupational diseases cannot take care of themselves during the paid work injury leave, who is capable to judge an employee’s inability for self-care is often a controversial issue. In some places, it is based on the opinions of medical institutions.¹² No.15), if an injured worker who is unable to take care of himself needs nursing during the paid work injury leave, the medical institution that receives him shall issue a certificate. The employer shall arrange person to take care of him or pay the accompanying fee monthly according to the standard of 40% of the average monthly wage of the employees in the previous year in the overall planning area.[/notes] The second issue is that the standards for nursing fees vary in different regions. For example, in Henan Province, the standard is set at 40% of the average wage in the overall region for the previous year, while in Anhui Province, it is set at 80%. Tianjin Municipality specifies that employers can determine this standard on their own. ¹³Additionally, certain courts reference the standards for nursing fees as the nursing fees for post-disability-identification.

The fifth is the nursing fees for post-disability-identification. If the employer has already purchased work injury insurance for the employee, the Work Injury Insurance Fund is responsible for monthly payment of the nursing fee after the disability level has been identified by the labor capacity appraisal. According to Article 32 of the 2003 “Regulations on Work Injury Insurance,” the nursing fee is paid at three different levels: complete inability of self-care, major inability of self-care, and partial inability of self-care. The standards for these levels are 50%, 40%, or 30% of the average monthly wage of employees in the overall planning region for the previous year, respectively.

A special situation is that if an employee resigns during the paid work injury leave, it is generally regarded as giving up the paid work injury leave entitlements after the termination, but if the employer dismisses the employee illegally, the employer should still bear all the employee¡¯s benefits in the period.

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Mr. Wangdong

Mr. Dong Wang has been in practice for over 20 years, specializing in business law, including employment law, commercial law, company law, and intellectual property law. Mr. Wang has earned respect and trust from his clients due to his professionalism, fidielty, and kindness.

Email: wangdong@royalaw.com

1
Article 9 of the Provisions of the Ministry of Human Resources and Social Security on the Implementation of the Social Insurance Law of the People’s Republic of China stipulates that “If an employee (including casual employees) is employed in two or more employers at the same time, each employer shall pay an work injury insurance premium for the employee separately. If an employee suffers from work-related injury, the employer for which the employee worked and injured shall bear the liability of work injury insurance according to law.¡±
2
Xuzhou Mining Group Co., Ltd. Jiahe Coal Mine Kaolin Factory and Pan Xiutuan Labor Dispute Appeal Case Civil Judgment of Xuzhou Intermediate People’s Court of Jiangsu Province (2014) Xu Min Zhong Zi No.3817. ¡°It is the legal right of the injured workers to enjoy the treatment of paid work injury leave. During the leave no matter how the injured workers apply for leave from their employers, the nature of the paid work injury leave will not change.¡±
3
For example, the Classified Catalogue of the Paid work injury leave for Injured Workers in Henan Province.
4
Article 33 of the Regulations on Work Injury Insurance stipulates that the paid work injury leave shall generally not exceed 12 months, and that for serious injuries or special circumstances the leave may be appropriately extended upon confirmation by labor capacity appraisal committees of cities that have set districts.
5
Civil Judgment of Second Instance of Labor Dispute between Zhang Xueliang and Tang Jiachang Civil Judgment of Intermediate People’s Court of Jiangmen City, Guangdong Province (2018) Yue 07 Min Zhong No.1782 (In this case, neither party applied to the Labor Capacity Appraisal Committee for confirmation of the paid work injury leave); Shenzhen Guangchengda Construction Labor Subcontracting Co., Ltd., Wang Shengwu Labor Dispute Second Instance Civil Judgment Liaoning Province Panjin Intermediate People’s Court Civil Judgment (2020) Liao 11 Min Zhong No.666. ¡°Injured workers who still need treatment after the expiration of the paid work injury leave shall continue to enjoy medical treatment for work-related injuries. From the above law and combined with judicial practice, the paid work injury leave generally includes two stages: hospitalization period and discharge period determined by medical advice.¡±
6
Du Haigang and Wuhan Geely Youhang Technology Co., Ltd. Civil Application for Retrial Review of Labor Disputes Civil Ruling No.5794 of Hubei High Court (2021). ¡°But there is no overtime during the paid work injury leave, the overtime wage items should be deducted. ¡±Hebi Coal and Electricity Co., Ltd. No.6 Coal Mine and Li Xidong Labor Dispute Appeal Case, Hebi Intermediate People’s Court of Henan Province Civil Judgment (2015) He Min Zhong Zi No.498, Liu Sunbiao v. Dongguan Changan Caijia Hotel Labor Dispute Case Civil Judgment of the Second People’s Court of Dongguan City, Guangdong Province (2012) Dong Er Fa Min Yi Chu Zi No.7272, Shenzhen Nanyou Fire Safety Engineering Co., Ltd. v. Li Haixia Labor Dispute Case Civil Judgment of the First People’s Court of Dongguan City, Guangdong Province (2015) Dong Yi Fa Dong Min Yi Chu Zi No.1878, Wang Lin v. Shenzhen Fufa Hardware Co., Ltd. Labor Dispute Case Shenzhen Bao’an District People’s Court Civil Judgment (2011) Shen Bao Fa Min Lao Chu Zi No.295, Shenzhen Hanwang Plastic Electronics Co., Ltd. Ling Xiao Labor Dispute Civil Judgment of Second Instance Civil Judgment of Intermediate People’s Court of Shenzhen, Guangdong Province (2020) Yue 03 Min Zhong No.9840
7
Shenyang Coking Coal Co., Ltd. Xima Coal Mine, Wang Qiang Labor Dispute Civil Judgment of Second Instance Civil Judgment of Liaoyang Intermediate People’s Court of Liaoning Province (2022) Liao 10 Min Zhong No.1187. ¡°Concerning the determination of the wage standard, the employee¡¯s wages mentioned in the Regulations on Work Injury Insurance refers to the average monthly contribution wage of the injured workers from the 12 months before they suffer from accidents or occupational diseases. Therefore, this court does not support Xima Coal Mine¡¯ claim that the overtime wage should be deducted from the wage recognition standard.¡± Case of labor dispute retrial between Mingshuo Computer (Suzhou) Co., Ltd. and Cao Ailing Civil Ruling of Jiangsu Provincial People¡¯s High Court (2020) Su Min Shen No.4338. ¡°Regarding whether overtime wages should be included in the calculation base of wages for paid work injury leave, the purpose that system of paid work injury leave sets up is to ensure the standard of life of work-related injury workers during medical treatment is not affected by the injury; Article 33 of the Regulations on Work Injury Insurance also stipulates that ¡°During paid work injury leave, the original wages and welfare benefits remain unchanged. Cao Ailing was unable to work overtime due to the work-related injury; it is not improper for the courts of the fist and second instance comprehensively considered the actual situation of this case, from the perspective of fairness, calculated the average monthly wage based on the actual income of Cao Ailing from the 12 months before her injury, and used it as the base for calculating and paying the wage during the period of paid work injury leave.¡± Civil Judgment of Guangzhou Intermediate People’s Court of Guangdong Province (2020) No.01 Minzhong 18083. ¡°The court of first instance held that the ¡°original wage and welfare benefits¡± during the paid work injury leave only referred to the wages for normal work hours excluding overtime wages. This a wrong understanding to the law application, and this court correct the judgment according to the law.¡±
8
Deng Xiang, Guangzhou Yuehao Hotel Management Co., Ltd. Labor Dispute Retrial Civil Judgment Guangdong Provincial People¡¯s High Court Civil Judgment (2018) Yue Min Zai No.28 and No.29
9
Article 60 of the Regulation on Work injury insurance of 2003.
10
Du Haigang and Wuhan Geely Youxing Technology Co., Ltd. Civil Application for Retrial Review of Labor Disputes Civil Ruling of Hubei High Court (2021) E Min Shen No.5794. Xie Zhifu, Civil Ruling on Labor Dispute Retrial Review and Trial Supervision of Ganlin Town Central Primary School in Jiajiang County, Civil Ruling of Sichuan Provincial People¡¯s High Court (2020) Chuan Min Shen No.1294. Lin Chengwen, Ningde Wanda Plaza Co., Ltd. Wanda Jiahua Hotel Labor Dispute Retrial Review and Trial Supervision Civil Ruling Fujian Provincial People¡¯s High Court Civil Ruling (2017) Min Min Shen No.2852.
11
Qin Guangkui and Chongqing Zhongtianhai Construction Engineering (Group) Co., Ltd. Labor Dispute Retrial Civil Judgment No.16 of Chongqing Fourth Intermediate People’s Court (2022). ¡°Work-related injury liability is a statutory no-fault liability, so medical expenses beyond the catalogue of work-related injury medical insurance should still be borne by the employer in principle. Unless the employer can provide evidence to prove that there is obvious non-necessity and non-rationality between the use of drugs beyond the scope of the medical insurance catalogue for work-related injuries and the treatment of work-related injuries.¡± Civil Judgment of Guyuan Garden Management Institute and Guomou Labor Dispute Civil Second Instance Civil Judgment of Guyuan Intermediate People’s Court of Ningxia Hui Autonomous Region (2022) Ning 04 Min Zhong No.1534. Wuhu Zhongshan Technology Co., Ltd. and Gaofeng Labor Dispute Appeal Case Civil Judgment of Wuhu Intermediate People’s Court of Anhui Province (2019) Wan 02 Min Zhong No.862. Xiao Haiyang and Beijing Xicheng District Children’s Amateur Sports School Labor Dispute First Instance Civil Judgment Beijing Xicheng District People’s Court Civil Judgment (2015) Xi Min Chu Zi No.36640.
12
With reference to article 16 of the Opinions of the Department of Human Resources and Social Security of Henan Province on Several Issues Concerning Work injury insurance (YRSSX ¹²2012
13
Reply to the Inquiry on the Issues Related to the Standards for Payment of Wages, Benefits, and Nursing Fees for work Injured Workers During the Paid Work Injury Leave, the JinLaoBan No. 11 of 2005. According to Article 29 of the “Measures for the Implementation of the Regulations on Work Injury Insurance in Anhui Province, if an injured worker requires care during the paid work injury leave or during the treatment period of work injury recurrence, employers are responsible for providing care or paying a monthly nursing fee based on certificate from medical institutions. The standard of the nursing fees is set at 80% of the average monthly wage of employees in the previous year in the overall planning region.

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66.What are the entitlements for employees with work-related injuries or occupational diseases?

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