‘Employee A’, who is working as a carpenter in a construction company, lives in an accommodation provided by the company. The distance between the accommodation and the company is close enough that some employees walk to and from workplace. One day ‘employee A’ rode a bicycle to work and slid on the icy road. Could this be considered an occupational accident?
What comes to mind when you think of commuting? Most people take a subway or bus, and spend a vast amount of time stuck in traffic. Office workers are stressed by their commute as much as they are by their work. Many accidents occur while commuting. Can accidents while commuting be considered occupational accidents as stipulated in the Industrial Accident Compensation Insurance Act?
Commuting is not work
In terms of its financial aspects, industrial accident insurance is different from the other three social insurances (employment insurance, health insurance and the national pension), in that employers pay 100% of the insurance premium for their employees. Employees are therefore eligible to receive compensation for work-related accidents only. In other words, accidents must occur while employees are working at their job under the employer’s supervision and management in order to receive industrial accident compensation.
Commuting is essential for employees, allowing them to work; but commuting itself is not work. This is because the manner in which an employee commutes to work depends on circumstances of the individual employee. In most cases, the method does not matter. Therefore, in principle, accidents while commuting are not considered occupational accidents.
The Industrial Accident Compensation Insurance Act approves commuting accidents as occupational only if they occur while under the employer’s supervision and management.
Article 37.1.1(d) of the Industrial Accident Compensation Insurance Act stipulates occupational accident as “an employee suffers any injury, disease or disability, or dies due to any accident that occurs while he/she participates in an event sponsored by or under the direction of his/her business owner or prepares for such event”.
Accidents recognized as occupational in exception
A typical occupational accident is when employees have a mishap while riding a commuting shuttle bus provided by the company. There is an administrative interpretation that an accident on a bus provided by an employer for the convenience of the employees to travel between home and work is an occupational accident. Even accidents during carpool situations where a company recommends that employees carpool and provides fuel expense compensation are considered to be occupational accidents.
What if an employee is involved in an employee-owned car accident during a commute? In principle, this is not an occupational accident since it is the employee’s decision on how to get to work and the car is not owned by the employer. However, the courts tend to view occupational accidents during commutes more broadly, recognizing them as work-related if there is no other choice but personal transportation for the commute.
The court’s criteria for determination is whether “the employee could choose other commuting means or not”. In other words, if the employee had no other alternative commuting means available, an accident is likely to be viewed as occupational.
It is difficult to use public transportation when the commuting time is early in the morning or late at night if there is no public transportation available. In such situations, there are several judicial precedents viewing an employee-owned car accident as an occupational accident due to the lack of accessible public transportation from the home to the workplace and vice versa.
An employee-owned motorcycle accident was deemed an occupational accident even though there was other public transportation available, since the commuting route was complicated enough that buses ran every one or two hours only and the employee had to transfer more than once along the journey. The court considered that in this case there was no other choice but to take the motorcycle to get to work in order to shorten the commuting time.
The court also checks whether a company has recognized that employees are driving their own vehicles. There is a high likelihood that an accident will be considered as occupational if the company pays for fuel expenses or provides for vehicle repairs. However, this is only a supplementary standard as far as considering compensation for occupational accidents is concerned. There are many cases of accidents being considered occupational even when companies did not pay for fuel expenses or vehicle repairs for employees.
Of course, such accidents must occur on the commuting route. If an employee stops somewhere else on the way to work for personal reasons and got an accident, it is not an occupational accident. However, there is a ruling which viewed as occupational because it occurred on the way to work after the employee had eaten breakfast at a restaurant designated by the company. In this case, it was deemed an occupational accident because the route from the restaurant to the company is actually pre-determined, similar to going to a cafeteria on company premises.
Could ‘employee A’ receive industrial accident compensation in this case?
Let’s look at the case of ‘employee A’. It is difficult to view this as an occupational accident in principle because ‘employee A’ commuted with his/her own bicycle. But an occupational accident might be considered if ‘employee A’ had no other choice but to ride his/her own bicycle.
In this particular case, other employees walked to work although walking took more time. This suggests that ‘employee A’ had a choice of either walking or cycling, and therefore this accident was not considered occupational, but occurred because ‘employee A’ chose to ride a bicycle rather than walk, meaning ‘employee A’ is responsible.
Regarding the recent ruling of the Constitutional Court and the discussion of revisions to law
Judicial precedents and related laws have viewed commuting accidents as occupational accidents in an exception.
The Constitutional Court however, has recently made a ruling of constitutional discordance on Article 37.1.1(d) of the Industrial Accident Compensation Insurance Act. This ruling reflected the fact that 1. commuting activities and work are directly related, 2. commuting accidents are already considered as occupational accidents for civil servants and 3. there are an increasing number of traffic accidents due to commuting long distances to work.
But this does not mean that an occupational accident for a particular case is approved automatically. The National Assembly has to revise the relevant laws based on the intent of the Constitutional Court’s ruling before 31 December 2017. Approval of commuting accidents as occupational accidents is one of the matters under discussion in the labor reforms and these discussions have been making slow progress. The Constitutional Court’s decision provides momentum for the discussion of revision of the Industrial Accident Compensation Insurance Act.
Therefore, companies should pay constant attention to the discussion on revisions to the laws in the National Assembly and have a precise understanding of the revisions. Companies need to modify their employment rules and collective agreements in accordance with upcoming law revisions to prevent unnecessary legal disputes.