Case Sharing on Work-Related Injury Recognition (1): Can an employee’s disappearance while on a work-related trip be classified as a work-related injury?

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This post was last edited by wang*nhua77020 on 2016-9-18 22:38. Can an employee’s disappearance while on a business trip be considered an occupational injury? Case Details: Fu is an employee of an electrical appliance company. In July 2015, he went on a business trip to another place to repair electrical equipment for clients. But when the agreed time arrived, the client still did not see Mr. Fu. The company called the hotel where the stay was arranged, and the hotel said that Mr. Fu checked out in the morning and had already left the hotel. Since then, Fu has been missing. 　　In November 2015, the electrical company stopped paying Mr. Fu’s salary. Fu’s family believes that he went missing while on a business trip, which constitutes an occupational injury, and therefore the employer should continue to pay him his salary. However, the company believes that the cause of Fu’s disappearance cannot be determined; and even if it constitutes a work-related injury, an application for workers’ compensation and the corresponding benefits can only be filed after he is declared dead by the court. 　　So, what should be done if an employee goes missing while on a business trip? Can Fu be recognized as having a work-related injury? Analysis: This is a dispute arising from an employee’s disappearance, with the focus on whether the employee’s family members can receive benefits equivalent to those granted in cases of death on duty following the employee’s disappearance while on a work-related assignment. 　　Article 14, Paragraph 5 of the Regulations on Work-related Injury Insurance stipulates that an employee who \"is injured due to work reasons or goes missing in an accident while on a business trip\" shall be recognized as having suffered a work-related injury. According to this, there are two scenarios for work-related injuries that occur during business trips: one is when an injury occurs due to work reasons while on a business trip ； The second is when an accident occurs and the person goes missing while on a business trip. 　　For the recognition of work-related injuries in cases of employees who are missing, two legal requirements must be met: First, the employee must have been on a business trip at the time of disappearance. Article 5 of the Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Administrative Cases Involving Work-related Injury Insurance states: “Where the social insurance administration department determines that a situation falls under the category of ‘periods spent on business trips’, the people’s court shall give such determination its approval: (1) During the period when an employee is assigned by the employer or is required to carry out activities related to their job duties outside the workplace” ； (II) During the period when employees are sent by their employers to attend training or meetings ； (III) During other outbound activities of employees required for work. ”Here, “business trips” refer to situations where employees go outside their workplace to carry out work related to their duties, engage in training, or attend meetings as required by their job. It includes two scenarios: going to a place outside the own unit but still within the local area, and going to a place outside the local region or abroad. 　　Second, the disappearance was caused by an “accident”. Here, an “accident” refers to an incident that occurs unexpectedly and causes physical injury or economic losses to property. It can be a safety accident, a terrorist incident, an accident, or it can also be a natural disaster, etc. 　　In the case of disappearance resulting from an accident, although the employee’s fate is uncertain, in order to protect the interests of those affected, Article 41 of the Regulations on Work-related Injury Insurance stipulates that: \"If an employee suffers an accident while on a business trip or goes missing during emergency rescue operations, his salary shall be continued to be paid for 3 months starting from the month in which the accident occurs; after the fourth month, payment of salary will cease, and the work-related injury insurance fund shall pay monthly benefits to his dependents.\" Those facing financial difficulties can receive 50% in advance of the one-time death benefit. If an employee is declared dead by a people’s court, the matter shall be handled in accordance with the provisions on an employee’s death on duty set out in Article 39 of these regulations. ” In other words, if an employee goes missing while on a work-related trip and the disappearance is caused by an accident, the employer shall file a claim for work-related injury in accordance with the law, and the work-related injury insurance authorities shall also recognize it as such. During the first 3 months following the accident, the employer shall pay the salary as usual; starting from the 4th month, the work-related injury insurance fund shall pay a pension to the dependents supported by the victim. If an employee is declared dead, the work-related injury insurance fund shall pay an additional one-time death benefit and funeral expenses. If the family members of an employee who suffered a work-related injury face financial difficulties, they can also receive an advance of 50% of the one-time death benefit before the employee is declared dead. According to this case, although Fu disappeared while on a business trip, strictly in accordance with the Regulations on Work-related Injury Insurance, it cannot be classified as a work-related injury. The main reason for this is that no \"accident\" occurred at the time of his disappearance. In other words, Fu’s disappearance is surrounded by a lot of uncertainty; for example, he might have been kidnapped due to personal grievances, or he might have chosen to \"disappear on his own initiative\". Of course, in practice some people consider a person’s disappearance to be an “accident.” But this claim is obviously rather far-fetched. If understood in this way, the Regulations on Work-related Injury Insurance should stipulate that \"if an employee goes missing while on a work-related trip, it shall be recognized as a work-related injury.\" ”Rather than deliberately adding the constraint of “an accident occurring”. 　　The general concept of “missing” and the concept of “missing following an accident” are two distinct legal terms, a conclusion that can also be drawn from the relevant regulations regarding the declaration of citizens dead. Article 23 of the General Principles of the Civil Law stipulates: “In any of the following circumstances of a citizen, interested parties may apply to the people’s court to declare him dead: (1) He has been missing for four years or more” ； (II) Missing due to an accident, and two years have passed since the date of the accident. ”Under this regulation, the time limit for declaring someone dead in cases of general disappearance is four years, while it is only two years in cases of disappearance following an accident.