Article 2 of the “Law on the Prevention & Control of Occupational Diseases” stipulates that “……the ’Occupational Diseases’ refers to diseases suffered by the workers of such Employer as enterprises, public institutions, and individual economic organizations due to exposure to dust, radioactive substances, and other toxic and hazardous factors.” Therefore, employers shall implement the responsibilities as stipulated in this law on the management of occupational diseases (hereinafter referred to as “ODs”) for employees who have signed labor contracts. The responsibilities mainly include arranging occupational health check before, during and after employment, providing ODs-related treatments and etc.. However, for some special occasions, there are different opinions on the implementation of those responsibilities.
Q1: Whether those responsibilities shall be implemented for a temporary position transfer?
A1: Article 33 of the “Law on the Prevention & Control of Occupational Diseases” stipulates that, where a worker is engaged in any operations with ODs hazards not stated in the labor contract concluded due to the change of the position or work contents during the term of the labor contract concluded, the employer shall disclose those information to the worker in a truthful manner, and negotiate with the worker to change related clauses of the original labor contract. Therefore, those responsibilities shall be be implemented for a temporary position transfer, no matter what the reason is, because this occasion shall be deemed as a change of position or work content.
Q2: Whether those responsibilities shall be implemented for dispatched workers?
A2: Article 86 of the “Law on the Prevention & Control of Occupational Diseases” stipulates that, “……each labor dispatching employer shall perform the obligations of the employer set forth in this Law…….” Therefore, if a dispatched worker engages in a position with ODs hazards, those responsibilities shall be implemented for him.
Q3: Whether those responsibilities shall be implemented for re-employed retired workers?
A3: This occasion shall be further divided into 2 situations:
First, where a worker has reached the retirement age, but has not gone through the retirement procedures or has not enjoyed the basic pension insurance benefits for urban employees, and he is re-employed by the original employer and engages in a position with ODs hazards. According to Article 2 of the “Opinions of the Ministry of Human Resources and Social Security on Matters Relating to the Implementation of the Regulations on Job-related Injury Insurance (II)”, under such situation, the employer shall assume the legal liability under the job-related injury insurance. Therefore, the relevant responsibilities shall be applied to such re-employed retired workers.
Second, where a worker has reached the retirement age, has enjoyed the basic pension insurance benefits for urban employees, and is re-employed by the original employer or other employers, and engages in a position with ODs hazards. Currently, there is no national law that requires employers to implement those responsibilitiesfor these employees, and there are disputes on this situation. The detailed analysis please find in Q4.
It is worth to be noted that retirement is another typical situation of the post-employment, so employers shall arrange relevant employees to undergo the occupational health check.
Q4: Whether those responsibilities shall be implemented for laborers?
A4: Among the relevant disputes, partial of the laborers would claim for a labor contract relationship, and be treated as an employee after courts have confirmed such relationship; and partial of the laborers are as similar as the second situation of those re-employed retired workers, and there are different opinions on dealing with such situation. A few provinces and cities have adopted local regulations on whether the “Law on the Prevention & Control of Occupational Diseases” shall be applied to those personnel, such as Article 9 of the “Measures for the Supervision and Administration of Occupational Health Monitoring of Industrial Enterprises in Jiangsu Province (for Trial Implementation)” prescribes that employers shall arrange temporary or outsourced laborers for occupational health check and adopt other ODs management measures. For the rest majority provinces and cities which do not have relevant regulations, they do not have a confirmed attitude as well. In addition, in the same province or city, different administrative departments may have different opinions due to their own roles. For example, the Shanghai Municipal Human Resources and Social Security Bureau responds that re-employed retired workers and laborers shall not be deemed as employees in the “Labor Law”, so both parties could discuss on the implementation of those responsibilities. However, the Shanghai Municipal Health Commission gives a more conservative response, and it recommends employers to implement those responsibilities for those re-employed retired workers and laborers.
In view of the above, we believe that ODs hazard operations may cause irreversible personal injury to all workers; therefore, ODs management shall be connected with positions, rather than labor relations. From the perspective of compliance, it is recommended that employers adopt necessary ODs prevention and control management for re-employed retired workers and laborers.