Everyone complains as temperatures peak in mid to late summer, but manual laborers especially feel the brunt of heat. This summer, there have been several recent reports of people dying on the job either from sunstroke or from simply overworking. One source indicates that more than 60,000 people die from overworking in China each year. Death from overwork has already become an issue of public concern. However, there are as yet unresolved legal ambiguities about how this phenomenon should be regarded and who is at fault: should death from overwork be regarded as a work-related injury? Should employers compensate the survivors of employees who die from overwork?

 

In general, death from overwork describes any case where someone working excessive hours becomes too fatigued and suddenly dies. It is not a clinically recognized medical condition, nor is it a legal term in China—up till now, there has been no definitive legal regulation about how incidence of death from overwork should be recognized and addressed. Still, this is a phenomenon that fits squarely within the realm of social medicine.

 

In Chinese labor law, death from overwork is usually excluded from the scope of work-related injuries. Paragraph 1 of Article 15 of Regulations on Work-related Injury Insurance, (issued by the State Council in 2003 and revised in 2010) stipulates:

“In case an employee dies from the outburst of a disease during working hours or on the work post, or dies within 48 hours after rescue but in vain, the death shall be regarded as work-related injury”.

While these narrow categories are recognized as work-related injuries, this implies that for cases in which employees suffer sudden deaths during non-working hours or not on the job for employees suffer sudden illnesses during working hours but die more than 48 hours later from after ineffectual attempts at rescue, the deaths will not be regarded as work-related injury. In short, paragraph 1 of article 15 does not give a clear and strict definition of death from overwork. While it briefly addresses circumstances that qualify as work-related injuries, these circumstances merely concern deaths which happen during working hours and on the job. It is true that, as far as protecting laborers is concerned, this provision does broaden the definition of work-related injury. Moreover, the 48 hour window is straightforward and simple, conducive to legal application. However, it is clear that this is a vast over simplification indicative of an incomplete legal paradigm—this provision does not enquire after the cause of morbidity.

Firstly, by regarding all sudden deaths during working hours and on the job as work-related injuries rather than seeking to establish a causal relationship between the death and the work, it may actually include cases of death on the job that are completely unrelated to the job itself, such as death from an episodic disease. This goes against the whole purpose of work-related injury insurance. Secondly, for cases of laborers who suffer sudden deaths while not on the job or beyond working hours, or who hold on for more than 48 hours but ultimately succumb to death, the families of the laborers are excluded from receiving work-related injury insurance, even if the cause of morbidity is death from overwork. Again, this goes against the function of work-related injury insurance; it does not help to protect laborers. Thirdly, there is no scientific or medical reasoning behind choosing 48 hours as the window of time in which a death qualifies as work-related. Such a stipulation can even create a situation of moral hazard, as in a case where the employee’s family members disagreed with the employers about whether or not to rescue the dying employee within 48 hours.

 

With cases of apparent death from overwork on the rise, there has been a widespread tendency to recognize the phenomenon legally and bring it under work-related injury insurance coverage. At present, death from overwork is considered a type of work-related injury in Japan, and is reported as distinct category in Japanese surveys.

 

In Japan, “karōshi” is defined as sudden death from stroke or heart attack or other circulatory or organ failure resulting from hypertension due to excessive work. The Japanese Ministry of Health, Labour and Welfare (MHLW) officially classified death from overwork as an occupational accident in 1994, and victims’ family members can demand compensation from employers through judicial channels. However, differences in standards of judgment for employers’ responsibility to provide compensation have led to a large deviation in how karoshi cases are handled. In 2001, the MHLW issued by-laws updating and elaborating the standards of judgment in karōshi cases. Where previous regulations had only examined employees’ work performance during the week before death, the new regulations extended the investigation to six months: more than 100 hours of overtime in the month before death, or more than 80 hours of overtime per month for two to six months before morbidity are considered cases of death from overwork. Additionally, working conditions, working environment, work-life balance and the frequency of business trips also serve as considerations for determining if a death is the result of overwork. These criteria better address the heart of the matter—over fatigue and hypertension. Besides Japan, the EU, the U.S. and Chinese Taiwan have also enacted specific legislation to standardize judgment for cases of death from overwork.

 

Excluding death from overwork from work-related injury compensation obviously does not accord with the principles of Chinese labor laws. The ultimate goal of work-related injury insurance is to protect the safety and health of laborers while they are at work. Insurance enables employers to share their risk and guard against the impact of work-related accidents and occupational diseases when they occur. Thus, it is necessary to include death from overwork in the in the work-related injury insurance coverage.

 

By no means is this to say that all occupational sudden deaths can be regarded as work-related injuries. Rather, my argument is that the abovementioned provisions in the Regulations on Work-related Injury Insurance are far from perfect, and the law should be modified to provide a strict definition of death from overwork which makes it clear which instances are eligible to receive compensation as a work-related injury. The key is to develop a legal framework which recognizes and helps to ascertain the causal relationship between sudden deaths and work—for work-related injury insurance, the central concern is always to confirm that there is a definite causal relationship between workplace accidents or occupational diseases and the work itself.

 

For death from overwork, there are two criteria that need to be weighed in establishing or refuting a causal connection: intensity of working conditions and pre-existence of health risks.  To demonstrate excessive stress arising from a laborer’s working conditions and thus a causal relation between the working conditions and mortality, it might be shown for example, that the deceased worked continuously without any break within 24 hours before the death, or that he or she had worked more than a certain amount of overtime in the month before death or had worked more than a certain amount of overtime on a monthly basis in the sixth months before the death. The mere presence of stressors does not guarantee they were the cause of death, however; whether work-related stress and tension were lethal, in which case the death should be regarded as a work-related injury, or whether another factor—a pre-existing disease or disability for instance—were more likely the decisive cause of death requires further investigation. While it may seem like it should be remarkably simple to isolate the cause of sudden occupational death as either being the job or the person, mortality is often triggered by a combination of these two reasons—the so-called competing causes of death. Faced with this sort of situation, the sine qua non causing death adopted in the Law of Germany can help to decide whether the death was work-related. Put simply, which ever competing cause passes the “but for” test (i.e. “but for this factor, this person would not have died”) can be regarded as the cause of death, thus determining whether the case should be regarded as a work-related injury (if the person would not necessarily have died but for the working conditions) or not (if the person would not have died but for his or her pre-existing disease or disability). Therefore, if a laborer suddenly dies on the job but his or her does not involve an atypical amount of health and risk, then the primary cause is the laborer’s own health conditions. If, however, here is reasonable evidence indicating that a laborers’ job can lead to specific conditions or illnesses, or the job entails a higher degree of health and safety risks, then it is clear that the laborer’s sudden illness or death is primarily a result of his or her job.

 

In sum, China should amend Regulations on Worker-related Injury Insurance to include death from overwork as a condition covered by work-related injury insurance. Additionally, standards of judgment should be explicitly articulated in order to improve the functionality of the work-related injury insurance system, ensure laborers’ health and safety and prevent death from overwork more effectively, and protect laborers’ legal interests. Given that death from overwork has yet to be covered by work-related injury insurance, cases of death from overwork for which it can be demonstrated that employers are in serious violation of relevant provisions of the Labor Law of China, for instance that they have not put into place necessary safeguards to protect laborers or that they have required their laborers to work excessive amounts of overtime, should be subject to investigation by the administrative department such that surviving relatives may claim civil damages in court.

 

 

 

Lin Jia is deputy Party secretary and professor of Renmin University of China Law School.

 

The Chinese version appeared in Chinese Social Sciences Today, No. 485, Aug. 7, 2013

                                                                                                                    Translated by Zhang Mengying

                                                                                                                       Revised by Charles Horne

The Chinese link:

http://www.csstoday.net/xueshuzixun/guoneixinwen/83476.html