From this year, accident that occurs while a worker is picking up his/her children from school after work is recognized as an industrial accident since the Industrial Accident Compensation Insurance Act (IACIA) has been amended. Before, commuting accidents were only recognized as industrial accidents when they occurred during the worker’s commute using transportation provided by his/her employer. However, the revised IACIA stipulates that commuting accidents to and from work by other means such as public transportation, car, or on foot are recognized as work-related accidents as well.
Also, any accident that occurs while a worker deviates from his/her ordinary commuting route is to be recognized as work-related if such deviation is to perform activities necessary for daily life such as the above-mentioned example of making a school run for the worker’s children.
There has been controversy about equity in terms of industrial accidents between civil servants and private-sector workers ahead of revision of the IACIA. So far, when a civil servant is involved in a commuting accident on the ordinary commuting route, it has been recognized as an industrial accident under the Public Officials Pension Act. Backed by growing demands for a similar level of protection for other workers, the IACIA has been revised.
Under the revised law, accidents which have not previously been recognized as work-related will be covered by industrial accident compensation insurance. As the scope of industrial accident has expanded, it is expected that companies will be required to bear an additional burden. In particular, the revised IACIA provision seems vague in terms of defining a normal commuting route and criteria for industrial accident compensation.
Towards appropriate handling of commuting accidents, it is essential to check and understand the changes to the IACIA. Following are the main changes and detailed guidelines from the Korea Workers’ Compensation & Welfare Service.
Accidents occurring on the normal commuting route to be recognized as work-related
Starting from 1 January 2018, accidents to and from work along the normal commuting route are recognized as industrial accidents. According to the guidelines from the Korean Workers’ Compensation & Welfare Service, such accidents need to meet the following criteria:
1) The accident occurs during movement between ‘place of residence’ and ‘workplace’; 2) the movement has ‘relevance’ to performing work; and 3) the accident occurs on ‘ordinary routes and means without any ‘deviation or interruption.’
‘Place of residence’ refers to the place where the employee lives on a daily basis. Even if the place is not his/her real home, the place where the employee actually lives because of the distance and commute is considered his/her home. However, if an accident occurs on the way to work from his/her friend’s house, the accident is not considered work-related.
‘Workplace’ refers to the place where the employee ordinarily performs his/her duties according to the relevant labor contract. For salespersons and delivery service couriers, an accident occurring while he/she is moving for the purpose of providing the sales or delivery service is recognized as an industrial accident.
‘Relevance’ to work refers to the employee commuting to and from work. If the employee leaves home earlier for personal activities like hobbies or private appointments, or remains at the workplace after work, any related commuting accident is not deemed work-related as there is no correlation between work and the accident.
‘Ordinary routes and means’ refers to the employee’s ordinary way of commuting such as by public transportation, car, bicycle or on foot. If there is a specific reason for taking a different commuting route such as due to construction, public protest or demonstration, or due to carpooling, the regular detour is also included. For example, if an employee detoured in a different direction because his/her ordinary commuting route has been flooded by heavy rain and an accident occurs on the way home from work, it is recognized as an industrial accident. An accident that occurs during the walk to catch a bus to work, instead of taking the subway which the employee normally takes for the commute, is also considered work-related.
‘Deviation or interruption’ and exceptions
According to the revised law, an accident occurring while a worker ‘deviates’ from his/her ordinary commuting route or while he or she ‘interrupts’ his/her commuting journey, in principle is not recognized as work-related.
‘Deviation’ means that the commuting accident occurred off the ordinary commuting route, and ‘interruption’ means that the worker was performing non work-related activities on the way to or from work. For example, if the worker takes a different route to drop by his/her friend’s house, even to simply pick up something on the way home, this is a ‘deviation.’ If the worker has dinner and drinks with his/her friends on the ordinary commuting route, this is deemed as an ‘interruption.’
However, minor activities such as purchasing a newspaper, refueling, getting coffee to go, and stopping to use the toilet are not considered deviations or interruptions. If such deviation or interruption is made during the commute to perform ‘activities necessary for daily life,’ any accident will be recognized as work-related. The Enforcement Decree to the IACIA defines the specific reasons for such activities.
For example, ‘purchasing daily necessities’ is determined by considering various factors such as the location of the store, and urgency of the purchase. If the worker stops by a large store off the normal commuting route because what needs to be purchased costs less there, any accident that occurs while going there during the journey to or from work is considered a work-related commuting accident.
‘Receiving job-related education or training’ means the worker is receiving education or training in the institutions and schools under the Vocational Education and Training Promotion Act and Higher Education Act. If an accident occurs on the way to the vocational education institution to learn welding skills, this is work-related. However, if an accident happens on the way to a sports center to engage in sports dance or yoga, this is not work-related. Accidents occurring while ‘exercising the worker’s right to vote’ during the commute for national elections stipulated by law are recognized as work-related. However, elections for private clubs or communities are not seen as activities necessary for daily life.
A ‘school run’ to pick up/drop off the worker’s children refers to daycare centers, kindergartens, and elementary, middle and high school. Therefore, if an accident occurs while the worker is driving his/her university-age kids to the subway station, or middle or high school-age kids for a part-time job, any accident is not work-related.
Activities and jobs excluded from industrial accident compensation
Accidents occurring through the worker’s intention to have an accident, injure him or herself or while engaging in a criminal act will not be recognized as industrial accidents. Therefore, activities that preclude consideration of a commuting accident as being work-related are driving while intoxicated, driving while unlicensed, violating the central dividing line and other illegal actions under the Road Traffic Act.
Some categories of jobs are not covered by industrial accident compensation insurance: taxi drivers and quick delivery service couriers whose work starts at their place of residence as their commuting route and method are not fixed. Those jobs which are not covered by commuting accident compensation insurance do not pay insurance premiums associated with commuting accidents.
More cases and court decisions needed
Now that we’ve looked at the changes to commuting accidents in 2018, it bears mentioning again that these cases reference guidelines from the Korea Workers’ Compensation & Welfare Service, and therefore, are not absolute standards. Clarification of the vague parts of the law is needed through relevant cases and court decisions on this matter. With a wider scope of recognized industrial accidents, companies need to review their industrial accident policies carefully and pay more attention to preventing any abuse of the new law.