If an employee got injured during a business trip abroad, whether such injury could be considered as a work-related injury?

Mr. Ho was dispatched by the company to work in Africa, where he accidentally fell from an operating platform and suffered a fracture. After receiving treatment at a local hospital in Africa for 22 days, Ho returned to China and was transferred to a local hospital for continued treatment. After discharge, Ho applied for the determination of the work-related injury. The company had purchased work-related injury insurance for Ho in Africa, so it suspended Ho’s domestic social security. If the local social security bureau determined Ho’s injury as a work-related injury, the company would have to pay additional work-related injury benefits. As the local social security bureau ultimately did not determine Ho’s injury as a work-related injury, Ho filed a lawsuit. The first-instance court, second-instance court, and the retrial court all supported the determination result of the local social security bureau (see (2020) Xiang Min Shen No. 478 for details).

Article 44 of the “Regulations on Work-related Injury Insurance” stipulates: “Where an employee is dispatched to work abroad, if he/she should participate in the local work-related injury insurance in accordance with the laws of the country or region he/she is going to, he/she shall participate in the local work-related injury insurance, and his/her domestic work-related injury insurance relationship shall be suspended; if he/she cannot participate in the local work-related injury insurance, his/her domestic work-related injury insurance relationship shall not be suspended.” This provision establishes the core principle for handling cross-border work-related injury issues, namely, the principle of territorial jurisdiction taking precedence, with domestic protection as a supplement.

In practice, there are four scenarios:

  1. Where it is unnecessary or impossible for the employee to participate in the overseas work-related injury insurance, domestic work-related injury insurance applies.

For short-term business trips, such as going abroad to attend seminars, business negotiations, or international conferences, enterprises usually do not purchase local work-related injury insurance for employees, or it is objectively impossible to do so. Therefore, enterprises generally would not suspend the payment of domestic work-related injury insurance. In such cases, if an employee gets injured abroad, he/she should naturally apply for the determination of a work-related injury in domestic. In consideration of high medical expenses incurred abroad and that many medications may not be reimbursable under China’s work-related injury insurance, many enterprises would purchase relevant commercial insurance for those employees.

  1. Where an employee should participate in the overseas work-related injury insurance according to the local law, the domestic work-related injury insurance is suspended after the employee has participated in the overseas work-related injury insurance.

For long-term overseas assignments or projects, such as a long-term dispatch, overseas engineering construction or production operations, such jobs usually require work visas. In such cases, normally, the overseas laws may require those employees to participate in local work-related injury insurance, so enterprises may encounter the issue of dual payment of work-related injury insurance both domestically and abroad. In accordance with Article 44 of the “Regulations on Work-related Injury Insurance”, enterprises may suspend the payment of domestic work-related injury insurance for employees after paying overseas work-related injury insurance for them. If a work-related injury occurs abroad, as in the case mentioned at the beginning, the claim should be handled in accordance with the overseas work-related injury insurance requirements. However, considering that the compensation standards for domestic work-related injury insurance and overseas insurance may differ, and if the overseas compensation standards are lower, it may easily lead to disputes. It is recommended that enterprises and employees enter into written agreements regarding matters related to participating in overseas work-related injury insurance and suspending domestic work-related injury insurance.

  1. Where overseas work-related injury insurance should be paid according to law, but the enterprise fails to insure.

First, the enterprise is at risk of being punished by overseas authorities for failing to insure employees in accordance with local laws. Second, if overseas work-related injury insurance is not participated in, the domestic work-related injury insurance will not be suspended, and the enterprise should continue to insure employees domestically. If the enterprise fails to insure employees domestically, it shall bear the corresponding liability for paying work-related injury insurance benefits. For example, (2021) Xiang 04 Min Zhong No. 2572 is a typical example of this type.

  1. Employees are dually insured both domestically and abroad.

If an employee participates in both domestic work-related injury insurance and overseas insurance during overseas work, can the employee obtain dual compensation?

One of the basic principles of civil law is the “indemnity principle”, so in legal theory, dual compensation should not be supported. Regarding whether there are exceptions in judicial practice, within the scope of our research, we have not found any judgments supporting dual compensation.