Whether a traffic accident for which an employee is not primarily responsible for commuting to and from work can be recognized as a work-related injury is often controversial in judicial practice, and this issue of the small series has compiled relevant cases, views, laws and regulations and other bases on how to understand the issue of "commuting to and from work" for readers' reference.
Rules of adjudication
1. If the employee's residence and place of work are separated by two cities, and a reasonable route to and from the two places within a reasonable time for commuting to and from work during the rest period shall be deemed to be "on the way to and from work" - Wang Moumou v. Chongqing Wanzhou District Human Resources and Social Security Bureau Work Injury Determination and Chongqing Municipal Human Resources and Social Security Bureau Administrative Reconsideration
【Essence of the case】If an employee's family residence is separated from his or her place of work by two cities, and on statutory holidays or agreed rest days, if the employee crosses the reasonable route between the two places within a reasonable time for commuting to and from work, it shall be deemed to be "on the way to and from work" as stipulated in Article 14 of the Regulations on Work-Related Injury Insurance.
Trial court: Chongqing No. 1 Intermediate People's Court (formerly Chongqing Intermediate People's Court of Sichuan Province)
Case source: Gazette of the Supreme People's Court, No. 5, 2022 (No. 309)
2. The commuting route should be a reasonable path for employees to go back and forth between their residence and work unit for commuting to and from work, and it should be comprehensively judged according to factors such as distance, road conditions, type of transportation and time period - Beijing Jinyu Hengtong Trading Co., Ltd. v. Beijing Mentougou District Human Resources and Social Security Bureau third person Ma Moumou work-related injury determination illegal case
【Case Summary】The commuting process should be a reasonable route between the employee's residence and work unit for commuting, and it should be comprehensively judged according to factors such as distance, road conditions, type of transportation and time period. If a person is injured in a traffic accident for which he or she is not primarily responsible at a reasonable time and within a reasonable route on the way to and from work, it shall be recognized as a work-related injury.
Case No.: (2018) Jing 01 Line End No. 761
Trial court: Beijing No. 1 Intermediate People's Court
Source: People's Justice Cases, Issue 8, 2020
3. The injury caused by a traffic accident for which the employee is not primarily responsible on the way to leave work early is a work-related injury - Yancheng Jinlongma Special Textile Co., Ltd. v. Jianhu County Human Resources and Social Security Bureau Administrative Cancellation Case
【Essence of the case】If an employee is injured by a traffic accident that is "not his primary responsibility" on the way to leave work early, it shall be recognized as a work-related injury according to law. Because leaving work early is a violation of labor discipline, it should be subject to labor discipline restraint and punishment, but this behavior does not affect the nature of the party's actual departure from work, nor is it sufficient to cause employees to lose their right to work-related injury insurance relief.
Case No.: (2015) Yanxing Zhongzi No. 00079
Trial court: Yancheng Intermediate People's Court of Jiangsu Province
Source: People's Justice Cases, No. 14, 2016
——An administrative confirmation case of a construction and installation engineering company in Chongqing v. Jiangjin District Human Resources and Social Security Bureau
【Case Summary】An employee entering the emergency lane of the highway on the way from work violates the prohibitions of the law, and at the same time is not reasonable and does not belong to a "reasonable route", so his injury should not be recognized as a work-related injury.
Court of Trial: Chongqing Fifth Intermediate People's Court
Case source: People's Court Daily, September 15, 2020, 3rd edition
5. Employees traveling to and from places that are not necessarily related to their own work should not be recognized as commuting - Gao's appeal application for administrative confirmation
【Case Summary】An employee traveling to and from an uncertain and non-regular place of eating and lodging should not be recognized as commuting to and from work due to the lack of necessary connection with the employee to engage in his or her own work, otherwise it will unduly increase the employer's employment liability.
Trial court: Nantong Intermediate People's Court of Jiangsu Province
Case source: People's Court Daily, April 6, 2016, 3rd edition
6. Employees who temporarily choose a route to work in violation of the Road Traffic Safety Law due to natural factors obstructing their normal route to work shall be considered a reasonable route-Xinye Sihai Tongda Investment Co., Ltd. v. Nanyang Human Resources and Social Security Bureau Work-related Injury Determination Case
【Essence of the case】An employee who temporarily chooses a route to work in violation of the provisions of the Road Traffic Safety Law due to natural factors obstructing his normal route to work shall be considered a reasonable route, and if he does not bear the main responsibility in the traffic accident caused by the violation of the Traffic Law, it shall be recognized as a work-related injury.
Case No.: (2013) Nanxing Zhongzi No. 00094
Trial court: Nanyang Intermediate People's Court of Henan Province
Case Source: Selected Cases of the People's Courts, Volume 91 (2015.1)
7. During the existence of the de facto labor relationship, if the employee is accidentally injured on the way from work, the employer shall also be liable - Du Moumou and Jiao Moumou labor dispute case
【Essence of the case】The relationship between the employee and the employer constitutes a de facto labor relationship, and the employer shall also be liable if the employee is accidentally injured on the way from work during the period of the de facto labor relationship.
Trial court: Jiaozuo Intermediate People's Court of Henan Province
Case source: Jiaozuo Intermediate People's Court Network
Judicial point of view
1. Death from a traffic accident on the way to medical treatment due to illness during work is a work-related injury
In judicial practice, if it is determined that a worker dies in a traffic accident while taking leave of absence during working hours to seek medical treatment, it should be denied that it is a work-related injury, and the following points should be noted:
1. Circumstances in which the law can be recognized as "commuting".
According to Article 14 of the Regulations on Work-Related Injury Insurance, if a person is injured by a traffic accident or an urban rail transit, passenger ferry or train accident for which he or she is not primarily responsible on the way to and from work, it shall be recognized as a work-related injury. According to Article 6 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases Involving Work-related Injury Insurance, "commuting to and from work" includes the following situations:
(1) Commuting to and from work within a reasonable time by a reasonable route between the place of work and the place of residence, habitual residence, and dormitory of the unit;
(2) Commuting within a reasonable time to and from the place of work and the place of residence of spouse, parents, and children;
(3) Engage in activities that are required for daily work and life, and commuting at a reasonable time and a reasonable route;
(4) Commuting to and from work on other reasonable routes within a reasonable time.
2. Understanding of "commuting".
"On the way to and from work" can be understood on two levels:
(1) Regarding the concept of "commuting".
Workers who have established a labor relationship with an employer should go to the workplace to engage in work, meetings, training, labor, culture and sports activities at the workplace according to the time determined by the employer or according to the actual needs of the work, which should be understood as going to work. Leaving work is taking part from that job to live, or engaging in other activities outside of work.
(2) Understanding of "commuting to and from work".
According to Article 6 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases Involving Work-related Injury Insurance, the requirement of "commuting to and from work" is reasonable in time and reasonableness in route. Reasonable time is the time used to travel on the road between the place of work and the place of residence; A reasonable route generally refers to a more economical and convenient route between the place of work and residence. The judgment of reasonable time and reasonable route depends on many factors such as road traffic conditions, means of transportation, weather conditions, congestion level, and place of residence. Therefore, reasonable time and reasonable route are not an immutable constant, but need to make empirical value judgments in accordance with the law and the actual circumstances of the case.
3. Workers who go out for medical treatment due to sudden illness during working hours are considered "on the way to and from work".
According to the foregoing, "commuting" should be a reasonable route within a reasonable time. The time on the way to and from work is a reasonable extension of working time, including not only the time on the way to and from work as a normal worker, but also the time on the way to and from work after overtime and the time on the way to and from work that changes due to reasonable reasons. The employee's act of taking leave to seek medical treatment due to sudden illness is reasonable and necessary, and the purpose of his leave of absence is to restore his body and continue to work as soon as possible, and the act of going out for medical treatment does not deviate from the essence related to work, which is a situation where the commuting time is changed due to reasonable reasons, and it is a reasonable time on the way to and from work. To sum up, if a worker is injured in a traffic accident during working hours due to a sudden illness while going out for medical treatment, it shall be recognized as a work-related injury.
(Excerpted from the People's Court Publishing House and the Editorial Board of the Practice Teaching Board of "The Lawyer": "The Essence of Labor Dispute Adjudication and the Application of Rules", People's Court Press, 2021 edition, pp. 197~198.) ）
2. Recognition of work-related injuries caused by traffic accidents caused by employees who go to work early
According to Article 14 (6) of the Regulations on Work-Related Injury Insurance, if an employee is injured by a traffic accident for which he or she is not primarily responsible or an urban rail transit, passenger ferry or train accident on the way to and from work, it shall be recognized as a work-related injury. In fact, this provision extends the occurrence of work-related injuries from working hours and workplaces to commuting to and from work, and the purpose of the legislation is to better protect the rights and interests of employees in work-related injuries, provide preferential protection to employees, and give employees work-related injury insurance benefits. However, the work-related injury insurance regulations do not further clarify the "commuting to and from work", and in judicial practice, whether the traffic accident injury suffered by an employee who departs from his place of residence one hour or several hours earlier than the employer's prescribed working time is a traffic accident injury "on the way to and from work", so there is a lot of controversy.
In this regard, the author believes that from the perspective of textual interpretation, "commuting to and from work" refers to a reasonable route between the employee's place of work and residence within a reasonable time for the purpose of commuting to and from work. However, in view of the complexity of reality, in the handling of specific cases, such as the determination of work-related injuries suffered by traffic accidents on the way to work in advance, the determination of work-related injuries should be judged in conjunction with the relevant provisions of the former Ministry of Labor and Social Security's Opinions on Several Issues Concerning the Implementation of the Regulations on Work-Related Injury Insurance and the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases Involving Work-related Injury Insurance, taking into account the space, time and purpose of "commuting to and from work".
First, the spatial factor of "commuting". The reasonable space on the way to and from work refers to the reasonable path that employees take from their place of residence to their place of work, including the most direct and accessible path between the two places, as well as the path that employees take to deal with matters closely related to their work, return home and daily life (such as buying vegetables at the wet market, picking up children at school), or the path that employees take to make a legitimate detour due to special circumstances such as impassable roads due to heavy rain, abnormal traffic congestion, etc. In view of the complexity of reality, according to the specific circumstances of "commuting to and from work" listed in Article 6 of the Provisions, "place of residence" and "place of work" should be understood in a broad sense, and "place of residence" usually refers to the dormitory provided by the employer, the place of residence of spouses, parents and children, the actual place of residence or habitual residence, etc.; "Workplace" generally refers to one or one of them, fixed or irregular workplace, but also includes a reasonable area where employees must travel to and from multiple workplaces related to their work, and the place where the employer or the unit participates in collective activities organized by other units with the consent of the unit.
Second, the time factor "on the way to and from work". "On the way to and from work" refers to the reasonable time for an employee to arrive at work from the place of residence or from the place of work to the place of residence. When judging "reasonable time", it is necessary to consider factors such as the distance between the place of work and residence, the smooth flow of roads, the type and performance of means of transportation, and climate change. The "start and end point" of "reasonable time" is also a key factor, including the start and end point of employees' normal working hours, as well as the time starting and ending points of employees coming to work early, leaving work late, and working overtime.
Third, the purpose factor of "commuting". The reasonable purpose of "commuting" refers to the fact that the route traveled by the employee is for the purpose of "commuting" or to deal with matters closely related to "commuting". If an employee goes to other places on the way to handle matters necessary and reasonable for his daily work life, then this journey should be regarded as "commuting to and from work", that is, the employer raised an objection on the grounds that the employee's early arrival to work was a violation of labor discipline, and cannot be a legal reason to hinder the reasonable purpose of "commuting to and from work"; On the contrary, the employee's early arrival to work is essentially for the benefit of the employer and is also within the scope of the reasonable purpose of "commuting to and from work".
To sum up, if an employee sets out from his place of residence in advance, as long as there is evidence that he or she went to work in advance in order to rush to work to complete his work tasks, then the traffic accident injury suffered on the way to work should be deemed to meet the three factors of space, time and purpose of the above-mentioned "commuting to and from work", and then should be protected by the Work-related Injury Insurance Regulations.
(Excerpted from Li Yonghui: "Determination of Work-related Injuries Caused by Traffic Accidents Caused by Employees Going to Work Early", People's Court Daily, May 30, 2019, 6th edition.) ）
Legal Provisions
1. Regulations on Work-Related Injury Insurance (Revised in 2010)
Article 14 In any of the following circumstances, an employee shall be deemed to have suffered a work-related injury:
(1) Injured by accidents due to work reasons during working hours and in the workplace;
(2) Injured by an accident while engaged in work-related preparatory or finishing work in the workplace before or after working hours;
(3) Suffering accidental injuries such as violence due to the performance of work duties during working hours and in the workplace;
(4) Suffering from occupational diseases;
(5) Being injured due to work reasons or having an accident while away from work, or the whereabouts of the accident are unknown;
(6) On the way to and from work, he is injured by a traffic accident for which he is not primarily responsible, or an accident involving urban rail transit, passenger ferry, or train;
(7) Other circumstances that laws and administrative regulations provide shall be recognized as work-related injuries.
2. Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases Involving Work-related Injury Insurance
Article 6: The people's courts shall support the determination by the administrative department of social insurance that the following circumstances are "on the way to and from work":
(1) commuting to and from work within a reasonable time by a reasonable route between the place of work and the place of residence, habitual residence, and dormitory of the unit;
(2) commuting to and from work within a reasonable time by a reasonable route between the place of work and the place of residence of the spouse, parents, and children;
(3) Engaging in activities that are required for daily work and life, and commuting at a reasonable time and a reasonable route;
(4) Commuting to and from work on other reasonable routes within a reasonable time.
3. Opinions of the Ministry of Human Resources and Social Security on <工伤保险条例>Several Issues of Implementation (II)
6. An employee's reasonable route between the work unit and the place of residence within a reasonable time for the purpose of commuting from work shall be regarded as commuting to and from work.
4. Opinions of the Ministry of Labor and Social Security on <工伤保险条例>Several Issues Concerning Implementation
2. Article 14 of the Regulations stipulates that "if a person is injured by a motor vehicle accident on the way to and from work, it shall be recognized as a work-related injury". Here "commuting" includes both the commute of employees working normally and the commute of employees working overtime. "Injured by a motor vehicle accident" can be caused by an accident in the motor vehicle driven or ridden by the employee, or caused by another motor vehicle accident by the employee.
Source: AFL Issue 2524