“How is the reasonable time for “commuting to and from work” defined? (Detailed and practical)

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bg2.png How should the reasonable time period for “commuting to and from work” be defined? (Detailed and practical) According to Article 14 of the Regulations on Work-related Injury Insurance, injuries sustained in traffic accidents, or accidents involving urban rail transit, passenger ferries, or trains, during the commute to and from work, provided that the individual is not primarily at fault, shall be recognized as work-related injuries. However, in terms of determining what constitutes an injury occurring on the way to or from work for the purpose of work-related injury recognition, the specific situations encountered in judicial practice are extremely varied and give rise to constant disputes. I. How does the Supreme Court determine what constitutes a “commute to and from work”? The Supreme People’s Court’s “Provisions on Several Issues Concerning the Trial of Administrative Cases Involving Work-Related Injury Insurance” (hereinafter referred to as the “Provisions”) specify four situations that fall under the category of “on the way to or from work” and should be recognized as work-related injuries. (1) On the way to and from work within a reasonable time, along reasonable routes between the workplace and the place of residence, habitual residence, or employer-provided dormitory ； (II) Commuting along a reasonable route between the workplace and the residence of one’s spouse, parents, or children within a reasonable timeframe ； (III) Engaging in activities necessary for daily work and life, on the way to and from work along reasonable routes and within reasonable time frames ； (IV) On the way to and from work via other reasonable routes within a reasonable time. II. Using cases as examples, how is the reasonable time period for “commuting to and from work” defined? 【Case 1: Leaving two days early to go to work is still considered a reasonable time】 (Source: People’s Court Daily) The plaintiff, Ms. Lu, and her husband, Mr. Feng, live in a residential complex on Ziqiang West Road in Lianhu District, Xi’an. Mr. Feng is an employee of a company in Chenggu, working in the substation operation department there. The substation operates on a two-shift system with weekly rotation, meaning seven days of work followed by seven days off. From September 2 to 8, 2013, Feng was on rotational leave; he was supposed to return to work on the 9th. After handing over his duties on the 2nd, Feng went back to his home in Xi’an to take time off. On the 7th, while riding a motorcycle back to his workplace in Chenggu County from Xi’an, Feng was involved in a traffic accident at 17:55 in Liuba County. As a result of the accident, Feng suffered severe injuries to his head and brain, and he died despite attempts to save him. The traffic police department determined that Feng bore no responsibility. The plaintiff, Mr. Lu, submitted an application for recognition of his injury as a work-related injury. However, after receiving the application, the Chenggu County Human Resources and Social Security Bureau decided not to recognize it as a work-related injury, on the grounds that it did not meet the conditions specified in Article 14 of the Regulations on Work-Related Injury Insurance. The reason is that Feng set off for Chenggu two days in advance; the traffic accident occurred at 17:55 on September 7, 2013, while according to the employer’s regulations, Feng was supposed to arrive at work on September 9, 2013 – a difference of 40 hours, which does not constitute a reasonable working time. Therefore, the decision made by the Chenggu County Human Resources and Social Security Bureau to deny recognition of the injury as a work-related injury is in compliance with relevant laws and regulations. After reviewing the case, the court determined that the location of the traffic accident involving Feng fell within a reasonable route for commuting to and from work. One of the key factors in determining whether the work-related injury classification is lawful in this case is whether the location where Feng died as a result of an accident not caused by his own fault occurred during his commute to or from work. The facts established in this case are that Feng’s commute to and from work had certain peculiarities: his habitual residence was in Xi’an, while his workplace was in Chenggu; the distance between the two places is over 300 kilometers. The work schedule at Feng’s workplace stipulates that after working for seven days, employees are entitled to seven consecutive days off. Therefore, Feng could only return to Xi’an during his leave period to be with his wife and daughter. In accordance with Article 6, Item (2) of the Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Administrative Cases Involving Work-related Injury Insurance (hereinafter referred to as the \"Provisions\"), a reasonable route taken within a reasonable time to travel back and forth between the workplace and the residence of one’s spouse or children shall be considered as part of the commute to and from work. Therefore, the route from Xi’an to Chenggu is a logical one for commuting between the workplace and the residence of one’s spouse and children. At the same time, the time when Feng was involved in the traffic accident fell within a reasonable period of time while traveling on a reasonable route between his workplace and the residence of his spouse and children, as part of his commute. In this case, Feng used a motorcycle as his means of transportation. Considering objective factors such as moderate to light rain in the Hanzhong area from September 7th to 8th, and the considerable distance between Xi’an and Chenggu County, he rode his motorcycle in advance from his residence in Xi’an to his workplace in Chenggu County in order not to be late for the shift change on the 9th. He was involved in a traffic accident and died as a result. Although the accident occurred some time before his shift change, the ultimate purpose of his trip was to go to work, so his actions were justified and it was reasonable for him to set off early. Accordingly, the court ruled in accordance with the law to revoke the “Decision on Denying Work-Related Injury Recognition” issued by the Defendant, the Chenggu County Human Resources and Social Security Bureau. The court also ordered the Bureau to make a new decision regarding the plaintiff’s application for work-related injury recognition within 60 days from the date the judgment takes effect. After the judgment was rendered, the defendant appealed against it. Following a hearing by the appellate court, the appeal was dismissed and the original judgment was upheld. [Case 2: Taking leave during working hours to see a doctor; the journey to the hospital still counts as part of the commute] At 1 p.m. on May 8, 2010, Tang, who was at work, suddenly felt unwell and requested leave to go to the hospital for treatment. After obtaining the exit permit issued by the production supervisor, Tang drove his electric bicycle out of the factory and headed straight to the town hospital. 5 minutes later, he was hit by a speeding heavy truck and died despite attempts at rescue at the hospital. His spouse submitted an application to the Human Resources and Social Security Bureau of Dantu District, Zhenjiang City, requesting that Tang’s injuries be recognized as work-related injuries. After receiving the case, the Human Resources and Social Security Bureau of Dantu District conducted an investigation and found that Tang went out on personal matters during working hours and died in a motor vehicle traffic accident; this situation does not fall under the provisions of Articles 14 and 15 of the Regulations on Work-related Injury Insurance. Therefore, Tang’s death was determined not to be a work-related injury. The administrative reconsideration, as well as the first and second instance courts, held the same view, concluding that it did not constitute a work-related injury. The court of first instance held that, in accordance with Article 14, Paragraph (5) of the Regulations on Work-related Injury Insurance, injuries sustained due to work reasons or cases of disappearance as a result of an accident while on a business trip shall be recognized as work-related injuries. That is, injuries sustained by employees who leave their workplace due to work requirements, as a result of engaging in production or business activities. However, Tang went out to see a doctor due to personal health issues; it was an outing for personal reasons, not for work-related purposes as specified above. The appellate court also upheld the aforementioned view of the trial court. After the second-instance judgment took effect, Dong Moumou filed a complaint with the People’s Procuratorate of Jiangsu Province. After reviewing the case, the People’s Procuratorate of Jiangsu Province filed a protest with the Higher People’s Court of Jiangsu Province. On February 21, 2012, the Higher People’s Court of Jiangsu Province reheard this case and held a public hearing. After reviewing the case, the Higher People’s Court of Jiangsu Province held that since Dong submitted an application for work-related injury recognition on June 10, 2010, the pre-amended Regulations on Work-Related Injury Insurance should apply. Article 14, Paragraph (6) of the regulation stipulates that “injuries sustained in a motor vehicle accident on the way to or from work shall be recognized as work-related injuries.” Article 15 of the “Opinions of the Jiangsu Provincial Department of Labor and Social Security on Several Issues Concerning the Implementation of the <Regulations on Work-Related Injury Insurance>” states that “on the way to and from work” refers to traveling along a reasonable route within a reasonable time frame. The time spent on commuting to and from work constitutes a reasonable extension of working hours; it includes not only the usual time taken by employees to travel to and from work, but also the time spent commuting after working overtime, as well as any changes in commuting times due to legitimate reasons. During work, Tang felt unwell and was unable to continue; he asked the production supervisor for a one-hour leave to go to the hospital for treatment. Therefore, the reason for taking leave to go out for an hour to see a doctor is reasonable and necessary. Considering that Tang’s purpose in taking leave was to resume work after recovering, and this did not deviate from work-related activities, it should be deemed that the one-hour leave taken to go out falls within the reasonable time frame for commuting to and from work. Given that Tang’s reason for taking leave to go out was to see a doctor, the hospital should be his first destination. The route from the company to the hospital should be considered a reasonable route on the way to and from work. Therefore, within the one-hour period permitted for leave, Tang sustained injuries from a motor vehicle while on his way from the company to the hospital, resulting in his death. This situation falls under the circumstances stipulated in Article 14, Item (6) of the Work-related Injury Insurance Regulations prior to its amendment. The original final judgment held that Tang merely took a temporary leave of absence, rather than leaving work early; thus, the provisions regarding injuries sustained in motor vehicle accidents during commuting should not apply. This constituted an error in the application of the law, as it mechanically interpreted the definition of “during commuting,” which runs counter to the legislative intent of the Work-Related Injury Insurance Regulations. The Higher People’s Court of Jiangsu Province issued a final judgment ordering the Human Resources and Social Security Bureau of Dantu District to conduct a new assessment of the work-related injury. Ultimately, the Human Resources and Social Security Bureau of the former Dantu District determined that Mr. Tang’s death was classified as a work-related injury. 【Case 3: An employee left work early without asking for leave; being injured in a car accident was still considered an occupational injury】 On the noon of December 13, 2010, Liu, an employee of a company in Jiulongpo District, left work early due to family matters, without waiting until the end of his shift or asking for leave first. However, on the way home, she was hit by a car; hospital tests revealed a fractured lumbar vertebra and a skin laceration on her left lower leg. Later, as determined by the public security authorities, Liu was found to bear no responsibility for the accident. After recovering, Liu requested the company to provide him with work-related injury benefits, but his request was denied. Therefore, an application was submitted to the Jiulongpo District Bureau of Human Resources and Social Security for work-related injury recognition. In June 2011, the Human Resources and Social Security Bureau of Jiulongpo District determined that Liu’s injury was a work-related injury. The employer disagreed with the determination of a work-related injury and filed an administrative lawsuit, arguing that Liu left his workplace without permission for personal reasons and without obtaining leave. He disregarded labor discipline regulations and ignored the warnings from security guards, insisting on leaving the factory. Therefore, any injuries sustained in the traffic accident cannot be considered work-related injuries. The Human Resources and Social Security Bureau of Jiulongpo District argued that, based on the investigation, Liu sustained an injury while on his way home from work; even if, as the employer claimed, Liu violated the company’s labor discipline rules, this does not affect the nature of the injury as a work-related injury. After reviewing the case, the court held that leaving work early constitutes a violation of the employer’s labor discipline rules, and the employer may impose corresponding disciplinary actions on the employee; however, such violations of internal management rules do not affect the nature of the work-related injury. At the beginning of 2012, the company filed a lawsuit with the Jiulongpo District Court, dissatisfied with the work-related injury determination issued by the labor authorities. The court held that “commuting to and from work” is merely a definition of “on the way,” with the emphasis on “on the way”; as long as an employee is on the way for or because of commuting to and from work, there should be no strict restrictions regarding the time. At the same time, there are also two scenarios for leaving work early: one is leaving the job without permission in violation of employment rules ； Another way is to leave the workplace early by obtaining approval through forms such as requests for leave or approvals. Regarding leaving work early under the “Heji” arrangement, it should be regarded as normal departure from work, and there is no issue regarding the determination of working hours ； For those who leave work early due to \"disciplinary violations\", employers usually do not recognize commuting injuries that occur during that time as work-related injuries. However, leaving work early due to \"violating rules\" still falls under the category of coming and going to work; an employee’s unauthorized departure from their post does not increase the potential risks during travel, and thus the connection between accidents that occur during commutes and work is not weakened as a result. An employee’s unauthorized departure from the workplace is merely a violation of employment discipline, and it does not fall under the statutory circumstances specified in Article 16 of the Regulations on Work-related Injury Insurance that exclude such situations as work-related injuries. Based on this, the court also determined that the labor department’s decision to classify it as a work-related injury was correct, and upheld it. [Case 4: An employee left work early without permission to return to his hometown; his death in a car accident was deemed a work-related injury] On the afternoon of March 15, 2002, Feng left the company early without obtaining permission and took a ride back to his hometown. He died in a car accident along the way. According to the determination of accident liability by the traffic police department, he bears no responsibility for the accident. Later, Feng’s wife, Dai, applied to the county Labor Bureau for a determination of work-related injury (death) for Feng. The county Labor Bureau issued a “Decision Notice on Work-Related Injury Recognition”, determining that Feng “shall not be regarded as having died from a work-related injury”. The decision was based on the fact that Feng left his workplace without permission to return to his hometown, and the traffic accident occurred outside of working hours and not during his commute. Dai disagreed and filed an administrative lawsuit. The defendant, the County Labor Bureau, argued that the traffic accident involving Feng occurred while he was on his way back to his hometown after leaving the company during working hours without going through the leave application procedures, rather than on his way home after work. After the first instance trial and an appeal to the second instance, the court held that although Feng had a dormitory at the company, his parents and wife Dai both lived in the countryside, and it was his habit to return to his rural home every Friday afternoon. Therefore, Feng’s death in a car accident on March 15, 2002, was considered to be an accident that occurred on his way home from work. As for Feng leaving work early without requesting leave, this constitutes a violation of labor discipline; it represents a separate legal relationship and does not affect the determination of work-related death in this case. Therefore, the appellant Dai argues that the grounds for appeal—that Feng died in a car accident while on his way home from work—are valid. The “Notice on the Decision regarding Work-Related Injury Recognition” issued by the respondent, the County Labor Bureau, contains unclear facts and incorrect application of laws; therefore, the first-instance judgment to revoke it is correct. The judgment was as follows: 1. Uphold the first provision of the administrative judgment rendered by the county court and revoke the second provision; 2. The county labor bureau, the respondent, shall, within two months after the judgment takes effect, re-evaluate whether Feng’s death constitutes a work-related injury as requested by Dai. III. How to determine “on the way to and from work”? According to the Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Administrative Cases Involving Work-related Injury Insurance, the determination of \"on the way to or from work\" shall take at least three elements into consideration: the first is the purpose element, that is, the intention to go to or return from work ； The second is the time factor, that is, whether the working hours are reasonable ； Third is the spatial factor, namely whether the routes between the workplace and residence are reasonable. The “reasonable time” and “reasonable route” during commuting are interrelated and indispensable spatio-temporal concepts for determining whether an incident occurs during commuting; they should not be separated from each other. In particular, “reasonable” time should not be simply interpreted as the start and end times stipulated in the employer’s attendance rules. There is a time window for commuting, which may be earlier or later; as to how much earlier or later this is, the law does not specify it clearly due to the complexities of real life. However, it must be justified; in addition to considering distance, an objective, reasonable, and comprehensive judgment should be made by taking into account road conditions, the type of vehicle, seasonal climate changes, and the occurrence of accidental events. IV. Practical Analysis Therefore, in determining what constitutes “on the way to or from work”, time duration alone cannot be used as the sole criterion. As in the first case mentioned earlier, although the person set out two days early, since their destination was the workplace and they were able to provide a reasonable explanation for leaving two days ahead of time, it was ultimately determined to be a work-related injury. The employee’s residential address and the address of their workplace are the sole criteria for determination. The second case mentioned earlier involves Tang, who took time off from work to go see a doctor; he died in a car accident on his way there. At such a time, it’s easy to mistakenly believe that it doesn’t fall within the usual route taken for commuting to and from work. Even judges in basic and intermediate courts interpreted “commuting to and from work” in a mechanical manner. However, considering that Tang’s purpose in taking leave was to recover his health so as to continue working—and thus his actions remained closely related to his job responsibilities—the Higher People’s Court of the province ruled that the one-hour period during which he was away on leave should be regarded as a reasonable part of his commuting time. Consequently, a retrial judgment was issued, ordering the Dantu District Human Resources and Social Security Bureau to re-evaluate whether Tang’s case qualified as a work-related injury. Ultimately, the Human Resources and Social Security Bureau of the former Dantu District determined that Mr. Tang’s death was classified as a work-related injury. There is another scenario: what if an employee leaves work early and suffers an accident on the way home? Whether this should be considered a work-related injury is a matter of significant debate in judicial practice. The third and fourth cases mentioned earlier fall into this category. In the third case, Liu left work early due to family matters without taking leave, and although he was injured in a car accident on his way home, it should still be considered an occupational injury. This is because the employee left work early, which constitutes a violation of the rules and regulations, but such behavior does not affect the determination that they were on their way to or from work. As the court determined after its review, an employee leaving work early constitutes a violation of the workplace’s labor discipline, and the employer may impose corresponding disciplinary action on such an employee; however, such a violation of internal regulations does not affect the nature of the work-related injury. Therefore, it was ultimately determined to be a work-related injury. In the fourth case, Feng left work early without requesting leave and took a ride back to his hometown; he died during the journey. Feng also violated the attendance management rules. Although Feng had a company-provided dormitory, his parents and wife, Dai, all lived in the countryside. It had become a routine for him to return to his rural hometown every Friday afternoon. Therefore, the traffic accident that occurred while he was on his way back to the countryside was ultimately recognized as a work-related injury. In other words, when an employee leaves work in violation of the rules and regulations, there is no essential difference from the normal situation of being on the way to or from work; their violation of these rules constitutes a separate legal issue, and the company can impose penalties based on the valid regulations in place, but this does not affect the classification of the injury as a work-related injury.