Recently, there have been cases of sudden illness and death of employees in customer companies, promising graduates, and rehired personnel who have reached retirement age and are still shining on their posts. To deal with the sudden illness and death of an employee, it is necessary to conduct a detailed analysis based on the employee's employment method, the type of agreement signed with the unit, the employee's age, work situation, time of occurrence of the disease, and the cause of the disease.
If it is an employee who has not reached the statutory retirement ageIf the employee dies of a sudden illness during working hours and in the workplace, or the employee dies within 48 hours after the sudden illness, according to Article 15 of the Regulations on Work-related Injury Insurance, "if an employee has any of the following circumstances, it shall be regarded as a work-related injury: (1) During working hours and at work, the employee dies of a sudden illness or dies within 48 hours after being rescued", which is regarded as a work-related injury (subject to the conclusion issued by the social insurance administrative department). The Regulations on Work-related Injury Insurance provide for liability.
In the case of re-hired personnel who have reached the statutory retirement ageIn practice, it is generally handled in accordance with the labor relationship, and the two parties shall implement it in accordance with the provisions of the Civil Code and the signed Labor Agreement, but it is not excluded that the situation can be recognized as a work-related injury, such as the death of the employee due to work-related injury insurance paid by the company for retirees in accordance with local policies, or the employee has reached the statutory retirement age in the enterprise, but the two parties have not gone through the retirement procedures, and the employee dies of sudden illness when the employer continues to employ the employee. Under the employment relationship, if the sudden illness of the retired employee is not directly related to the job, the enterprise may not be liable. However, businesses can provide the necessary assistance and support, such as assistance with medical treatment and follow-up.
Case 1] Aunt Wang, 52 years old, works in a restaurant in Shanghai, and signed a labor agreement with the outsourcing company for a period of one year from January 5, 2024. Aunt Houwang had a sore throat and chest pain on January 22, which she did not pay attention to, and on January 24, she felt unwell again during the working hours, and the store manager did not arrange work after learning about it, and asked the aunt to go back to the dormitory to rest, and there was no overtime work or continuous overtime during the period. At 9 a.m. on January 25, Aunt Wang's symptoms worsened, and at 9:16 she called for help and 120 went to the emergency department of the hospital, and the diagnosis results were: severe pneumonia, influenza B infection, pulmonary hemorrhage, respiratory failure, etc., and she died after rescue efforts failed.
Based on the above case, the preliminary analysis is as follows:
Because Aunt Wang has reached the statutory retirement age, in practice, it is generally handled in accordance with the labor relationship. The employment relationship is regulated by the Civil Code. According to Article 1192 of the Civil Code, if the party providing labor services suffers damage due to labor services, it shall bear corresponding liability according to the respective faults of both parties. In this case, Aunt Wang died due to her sudden illness, and the store was not at fault and should not be held liable for the death of the employee, but according to the principle of fairness or the spirit of humanitarianism, a certain amount of condolence money can be paid to the employee's family.
In this case, if Aunt Wang's sudden illness and death are at fault, such as the unreasonable work arrangement of Aunt Wang, allowing Aunt Wang to continue to provide labor services when she is unwell, or Aunt Wang has long-term high-intensity overtime, continuous night shifts, high-load work, etc., the store will be liable according to the size of the fault, and then the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases (2022 Amendment) The specific matters include: death compensation, funeral expenses, living expenses of dependents, and in practice, the court will also support other reasonable expenses such as transportation expenses, accommodation expenses, and loss of work incurred by the deceased's relatives in handling the funeral.
Extension:
On the basis of this case, if Aunt Wang did not reach the retirement age when she joined the company, we also need to consider whether there is a possibility of applying for a work-related injury determination.
First,In this case, the employer and its relatives are eligible to apply for work-related injury determination. According to the Notice of the Shanghai Municipal Human Resources and Social Security Bureau on the Handling of Opinions on Several Issues Concerning the Implementation of the Measures for the Implementation of Shanghai Work-related Injury Insurance (Article 4 of Hu Ren She Fu Fa No. 36), if an employee reaches the statutory retirement age and fails to go through the procedures for receiving basic pension insurance benefits on a monthly basis, or does not meet the conditions for receiving basic pension insurance benefits on a monthly basis, and continues to work in the original employer, the applicant may apply to the district and county human resources and social security bureau where the unit is registered for work-related injury determination. Based on this provision, if Aunt Wang is not over 50 years old when she joins the company, the unit or relatives who may meet the above circumstances can apply to the Human Resources and Social Security Bureau for a work-related injury determination.
Second,There is a possibility that it will be recognized as a work-related injury by the social insurance administrative department. According to Article 15 of the Regulations on Work-related Injury Insurance, an employee shall be deemed to have suffered a work-related injury under any of the following circumstances: (1) He dies of sudden illness during working hours and at work, or dies within 48 hours after rescue fails.
So does this case fit?
From the perspective of general public awareness, the time point of the above-mentioned employee's sudden illness is during the dormitory rest time, that is, non-working hours, non-work, and should not be regarded as a work-related injury, but in practice, if he takes leave to return to the dormitory after a sudden illness at work and is sent to the hospital for rescue and dies ineffectively, there should be an extension and continuity between the sudden illness and the death result, and within 48 hours, there is a possibility that it meets the requirements for recognition as a work-related injury. For example, in the case of the Supreme People's Court (2017) Zui Gao Fa Xing Shen No. 3687, the dormitory of the unit is regarded as a reasonable extension of the workplace, and the death of an employee who is unwell during working hours and returns to the dormitory to rest is recognized as a work-related injury.
Case 2] Xiao Chen, 20 years old this year, signed a labor contract with the store, but the store did not pay social security to Xiao Chen, and on January 15, 2024, Xiao Chen died of a sudden illness during a break in the dormitory.
In this case, an employment relationship was established between Xiao Chen and the store, and priority was given to determining whether Xiao Chen's death constituted a work-related death in this case, and if so, the work-related injury insurance** and the employer would be liable in accordance with the provisions of the Regulations on Work-related Injury Insurance. Now, according to the provisions of Article 15, Paragraph 1 of the Regulations on Work-related Injury Insurance, Xiao Chen's death due to a sudden illness other than during working hours is not met by the circumstances of work-related injury determination, and the store does not bear the liability under the Work-related Injury Insurance Regulations.
However, in this case, the store needs to bear Xiao Chen's funeral allowance, pension and other benefits.
Here's why:According to the provisions of Article 17 of the Social Insurance Law and Article 2 of the Interim Measures for the Treatment of the Survivors of the Basic Pension Insurance for Enterprise Employees, if an individual (on-the-job + retired) who participates in the basic pension insurance dies due to illness or non-work, his or her surviving family members can receive funeral subsidies and pensions, and the required funds shall be paid from the overall planning of the basic pension insurance for enterprise employees. The current unit did not pay social insurance to Xiao Chen, resulting in the bereaved family members not being able to enjoy the funeral subsidy and pension treatment, and this part of the cost needs to be borne by the store.
In the above two cases, the store and the employee's family actively negotiated to determine the condolence compensation that the store (third party) needs to pay to the employee's family, and signed a written agreement, which will be terminated. But it does give a lot of employment inspiration to catering companies.
Accidents involving employees of catering stores are more common, especially if the employee dies, the unit shall immediately report to the police and the public security organs shall deal with it, and at the same time, they can protect their rights and interests from the following perspectives in daily management:
1.Risk investigation to avoid fault for employees:Conduct regular workplace safety risk investigations, and discover and solve potential safety hazards in a timely manner;
2.Do a good job in signing labor contracts and labor contractsSign a labor contract with an employee who meets the labor relationship in accordance with the law, and once the employee reaches the statutory retirement age, pay attention to terminate the labor contract in a timely manner, and if it is necessary to continue to employ, the labor agreement can be renewed.
3.Insurance Coverage:Purchase necessary insurance for employees who have signed labor contracts, such as social insurance, accident insurance, etc.; In the case of labor relations, retiree work-related injury insurance or other commercial insurance can be purchased according to local policies to reduce the economic costs that may be borne by the enterprise.