Answer: If you have not been exposed to pneumoconiosis related occupational hazards after you left your employer, the employer may still needs to assume the responsibility for pneumoconiosis that is discovered after the termination.
Articles 8 and 9 of the Opinions of the Ministry of Human Resources and Social Security on Several Issues Concerning the Implementation of the Regulations on Work Injury Insurance (Renshebufa 2013 No.34) stipulate that those who have been exposed to occupational hazards, who have not been found to suffer from occupational diseases at that time, and who have been diagnosed or identified as occupational diseases after leaving their roles, may still be identified as work injury and, according to Regulations on Work Injury Insurance, to receive payments from the Work Injury Insurance Fund and the employers. In absence of work injury insurance for an employee, the employer shall bear the liabilities of items and standards under the Regulations on Work Injury Insurance.
Therefore, whether the employer you left is responsible for your occupational disease depends mainly on whether your pervious role is the occupational hazard role related to pneumoconiosis, and whether the employer arranged you to do the off-role occupational health examination.
A typical case is Li Farong, one of the ten typical cases of labor disputes in the Fifth Intermediate Court of Chongqing in 2014, in which the employee was found to have a pneumoconiosis seven years after leaving a coal mine. Because the employer did not arrange for the employee to have a off-role occupational health examination and the pneumoconiosis disease was related to the employee’s underground work in the employer, the court ordered the employer to bear the liability for work injury.1Chongqing Fifth Intermediate People’s Court Labor Dispute Ten Typical Cases (2014) II: Li Farong and Yonglong Coal Mine Labor Dispute Appeal Case-Miners leave their jobs without physical examination, the former employer, a coal mine, should be responsible. The court held that Yonglong Coal Mine did not arrange a health check-up for Li Farong before he left role in accordance with the law, which could not prove that Li Farong’s pneumoconiosis was contracted after he left the mine, and decided that Yonglong Coal Mine should bear the corresponding liability for compensation for work-related injuries.
Even if you have undergone a off-role occupational health examination and were not diagnosed with pneumoconiosis when you left, and if pneumoconiosis is later discovered, the former employer may still be liable for work injury. In a case heard by the Chengde City Intermediate People’s Court in Hebei Province in 2015, the employee underwent an off-role occupational health examination when leaving the former employer and no abnormalities were found. However, during a pre-role occupational health examination four months later, pneumoconiosis was discovered. The court determined that because there was a factual employment relationship between the employee and the former employer, the employee was still entitled to apply to the social insurance bureau for work injury identification and to claim from the former employer and the Work Injury Insurance Fund for his work injury entitlements. 2Judgment of the Second Instance of the Civil Dispute between Chengde Tianbao Mining Group Iron Feng Mining Co., Ltd. and Wang Xiaoguang, Hebei Chengde Intermediate People’s Court, Civil Judgment (2015) Cheng Min Zhong Zi No. 01672.
If you have been exposed to occupational hazards related to pneumoconiosis both in your former employer and the current employer, the question of who should bear the responsibility for work injury found in the current employer is a complex legal issue. Please refer to ¡°Which employer is liable for the work injury of pneumoconiosis suffered by an employee who had been exposed to dust in workplaces of both former and current employers?¡±
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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.
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- 1Chongqing Fifth Intermediate People’s Court Labor Dispute Ten Typical Cases (2014) II: Li Farong and Yonglong Coal Mine Labor Dispute Appeal Case-Miners leave their jobs without physical examination, the former employer, a coal mine, should be responsible. The court held that Yonglong Coal Mine did not arrange a health check-up for Li Farong before he left role in accordance with the law, which could not prove that Li Farong’s pneumoconiosis was contracted after he left the mine, and decided that Yonglong Coal Mine should bear the corresponding liability for compensation for work-related injuries.
- 2Judgment of the Second Instance of the Civil Dispute between Chengde Tianbao Mining Group Iron Feng Mining Co., Ltd. and Wang Xiaoguang, Hebei Chengde Intermediate People’s Court, Civil Judgment (2015) Cheng Min Zhong Zi No. 01672.