Getting Injured or Suffering from a Disease During the Lunch Break, Is it a Work-Related Injury?

During the lunch break, Yang went home to get a work operation permit, and got injured in a traffic accident on his way to work. Yang filed an application for ascertainment of the work-related injury (“WRI”). However, the authority determined that this was not a WRI. Both the courts of the first instance, and second instance supported the authority’s decision [(2017) Hu 01 Xing Zhong No.11]. Coincidentally, Wu suffered from a sudden disease during the lunch break, and died within 48 hours due to ineffective rescue. The local authority determined that this was a WRI. The employer filed an objection against the decision, but the court supported the authority’s decision [(2013) Pu Xing Chu No.281].

Why there are different opinions on the similar occasions?

Article 14 and 15 of the “Regulation on Work-Related Injury Insurance” prescribe the circumstances, which could be ascertained to have suffered from the WRI, and shall be regarded to have suffered from the WRI. While an employee gets injured or suffers from a disease during the lunch break, usually, the employee would take 2 articles as the legal basis to apply for the ascertainment of the WRI. The 2 legal basis are, (a) paragraph 1 of Article 14, which is the employee is injured from an accident within the working hours and the working place due to his work; and (b) paragraph 1 of Article 15, which is during the working hours and on the post, the employee dies from a sudden disease or dies within 48 hours due to ineffective rescue.

Paragraph 1 of Article 14 has prescribed 3 elements, which are the working hours, workplace and working reasons. Paragraph 1 of Article 15 has prescribed 2 elements, which are the working hours and the job position.

Firstly, whether the lunch break shall be deemed as the working hours? The majority courts held that the lunch break shall not be deemed as the working hours, because the employees are free during this period, such as the cases, (2017) Hu 01 Xing Zhong No.11, (2016) Yue Xing Shen No.1138, (2018) Jing 03 Xing Zhong No.918 and etc.. Very few courts held that the lunch break shall be deemed as a reasonable extension of the working hours, and the main legal basis is the “Provisions on Several Issues Concerning the Trial of Administrative Cases of Work-Related Injury Insurance” (“Provisions”), in which the reasonable extension of the working hours has been mentioned. For example, in the case (2013) Pu Xing Chu Zi No.281, the court took the lunch break as a rest break at work; and in the case (2015) Yi Zhong Xing Zhong Zi No.2077, the court took the lunch break as a reasonable extension of the working hours, because the employee got injured when the lunch break was almost finished and the working hours was about to begin.

Secondly, there are few disputes on the workplace. For example, in the case (2015) Yi Zhong Xing Zhong Zi No. 2077, the court pointed out that the employee was kicking the shuttlecock, in the parking garage downstairs of the working place, and it shall not be deemed as the workplace.

Thirdly, how to determine the working reasons? Article 4 of the “Provisions” prescribes the principle of the inversion of the burden of proof, that is, an employee got injured during working hours and in the workplace, the employer or the authority failed to prove that the injury was not caused by working reasons, the authority shall ascertain such circumstance as a WRI, if there is any dispute, then the court shall support the authority’s decision. Therefore, in practice, if an employer could not prove that such injury was not caused by working reasons, then normally, such circumstance would be ascertained as a WRI.

Fourthly, how to determine whether an employee was at his job position while the sudden disease happened. The key point is whether the employee is performing his duty. In case (2013) Pu Xing Chu Zi No.281, the court held that Wu was having a rest in the workplace during the lunch break, because his is the cleaner, if he did not leave the workplace, then it was reasonable to determine that he was at his job position. In (2015) Er Zhong Xing Zhong Zi No. 245, the court held that the employee was calling colleagues to arrange the afternoon work during the lunch break, and he should be determined as at his job position.

In summary, getting injured or suffering from a disease during the lunch break, such occasions shall be determined case by case. If an employee applies for a WRI, the employer shall analyze the relevant elements and make a reasonable decision.