Can workers who have reached the statutory retirement age enjoy the benefits of work-related injury insurance—— Retirement Series Article 4

LABEL： Healthcare and Medicine , Labor ,

With the acceleration of the aging process of China's population and based on the actual needs of the labor market, more and more workers ("over age workers") continue to work after reaching the statutory retirement age due to re employment or failure to handle retirement procedures and other reasons. For overage workers, there is a higher employment risk compared to eligible workers, and it is necessary and urgent to strengthen the protection of work-related injury rights for overage workers. However, in practice, there are different views and opinions on whether overage workers are entitled to work-related injury insurance rights at the legislative and judicial levels.

After the recent promulgation of the "Measures of the State Council on Gradually Delaying the Statutory Retirement Age" (the "Measures"), Article 6 explicitly mentions the issue of protecting the rights and interests of over aged workers. As the fourth article in the retirement series, this article intends to explore the relevant issues of work-related injury insurance rights for over aged workers in the "Measures", and take this opportunity to preliminarily sort out existing laws, regulations, and arbitration viewpoints for reference.
1、 New regulations: How to implement the protection of work-related injury insurance rights for over aged workers?

Article 6, Paragraph 1 of the Measures stipulates that "when employing workers who have exceeded the statutory retirement age, the employer shall guarantee the basic rights and interests of the workers, such as remuneration, rest and vacation, labor safety and health, and work-related injury protection". It mentions the basic rights and interests of work-related injury protection for "workers who have exceeded the statutory retirement age", which is a positive response to the increasing number of over age workers and their increased risk of injury and death in employment. However, how to understand and apply the first paragraph of Article 6 of the aforementioned Measures may further lead to the following questions, such as:

What are the specific situations of "recruitment"? Does it only refer to the recruitment of workers who have reached the statutory retirement age, or does it include workers who have worked in the same employer before and after reaching the statutory retirement age?

Does' workers over the statutory retirement age 'include those who have already enjoyed pension benefits? Or only include overage workers who have not legally enjoyed pension insurance benefits? If it is the latter, will there be differences in the work-related injury insurance rights of these overage workers based on the reason of not enjoying pension insurance benefits?

What are the specific protection measures for work-related injury rights and interests? Will it be mandatory for employers to purchase work-related injury insurance for overage workers?

The above questions need to be further clarified through subsequent judicial practice cases and detailed supporting regulations. However, Article 6 of the Measures has to some extent filled the legislative gap in protecting the rights and interests of over aged workers in work-related injury insurance, and has important practical significance.
2、 What is the current situation of protecting the rights and interests of work-related injury insurance for overage workers under the "old law"?

The determination of work-related injuries generally starts from the existence of a labor relationship between the worker and the employer. Before discussing the protection of work-related injury rights and interests for over aged workers, it is necessary to clarify the relationship between over aged workers and employers.
（1） Is it a labor relationship or a service relationship between overage workers and employers?

The difference in the criteria for determining the termination of a labor contract between Article 44 (2) of the Labor Contract Law of the People's Republic of China and Article 21 of the Implementation Regulations of the Labor Contract Law of the People's Republic of China is an important reason for disputes related to the determination of the relationship between overage workers and employers. After reviewing the laws, regulations, and judicial viewpoints in major regions, we understand that the determination of the relationship between overage workers and employers should be discussed separately based on the specific types of overage workers in different situations.
1. Type 1: Overweight workers who have already enjoyed basic pension insurance benefits in accordance with the law

According to Article 32 of the Interpretation of the Supreme People's Court on the Application of Law in the Trial of Labor Dispute Cases (Interpretation [2020] No. 26), "If an employer initiates a lawsuit due to a labor dispute with a person who has already enjoyed pension benefits or received retirement benefits in accordance with the law, the people's court shall handle it as a labor relationship." Therefore, there is usually no significant dispute between an over age worker who has already enjoyed basic pension benefits in accordance with the law and the employer regarding the labor relationship.
2. Type 2: Overweight workers who have not yet enjoyed basic pension insurance benefits in accordance with the law

In China, due to objective reasons such as insufficient payment years, workers who have reached the statutory retirement age do not necessarily meet the conditions for enjoying basic pension insurance benefits. Although the Ministry of Human Resources and Social Security once pointed out in the Reply to the No. 4419 Recommendation of the Fourth Session of the Twelfth National People's Congress that as long as workers reach the statutory retirement age, no matter whether they enjoy pension insurance benefits or not, the labor contract will naturally terminate. However, according to the "Employment Determination of Employees Who Have Reached the Statutory Retirement Age" by the First Civil Division of the Supreme Court, if an employee has reached the retirement age but has not lawfully enjoyed basic pension insurance benefits, it does not necessarily mean that the employment relationship will automatically terminate. The court should conduct a substantive review of the application of Article 21 of the Implementation Regulations and determine whether the employment relationship can be terminated based on the reason that the employee cannot enjoy basic pension insurance benefits.
(1) Legislative caliber in some regions

At the national level, there are also differences in legislative approaches across regions. We have sorted out the laws and regulations in some regions as an example, and the relationship between over aged workers who have not yet enjoyed basic pension insurance benefits and employers can be roughly divided into the following three perspectives:

a. Forming a labor relationship: Beijing, Shenzhen, Zhejiang, Shandong, Sichuan, Anhui and other places tend to believe that the employment relationship formed between overage workers and employers should be treated as a labor relationship, without specifically distinguishing whether overage workers actually enjoy pension insurance benefits.

b. Forming labor relations: In places such as Shanghai and Jiangsu, there is a tendency to believe that under certain circumstances, overage workers can form a "special labor relationship" with the employer. Taking the relevant regulations in Jiangsu Province as an example, if there is an employment dispute between an employer and an overage worker who has not yet received basic pension insurance benefits, and the employment situation between the two parties meets the characteristics of the labor relationship, it shall be handled according to the special circumstances of the labor relationship.

c. It should be determined based on the reasons why the worker did not enjoy pension insurance benefits or the time when the employment relationship was established. For example, in Tianjin, Henan and other places, the nature of the relationship between overage workers and employers should not be generalized. Instead, substantive judgments should be made based on the reasons why the worker did not enjoy pension insurance benefits (such as whether the employer was at fault for this) or the time when the employment relationship was established (such as whether the worker worked in the same employer before and after reaching legal age).
(2) Views on Adjudication Practice in Some Regions

The recognition of the relationship between over aged workers who have not yet enjoyed basic pension insurance benefits and employers is not unified in the practice of arbitration in various regions, and there are even cases where the views of arbitration practice are inconsistent with the local legislative caliber. For example:
a. Adjudication viewpoint 1: The two parties constitute a labor relationship

The arbitration authorities in Beijing generally believe that regardless of whether an overage worker enjoys basic pension insurance benefits, the labor contract between them and the employer will naturally terminate, and the labor relationship between the two parties will no longer be established. For example, in the case of Jingmin Shen No. 8255 (2021), the court held that the legal effect of termination of the labor contract can occur when the employee reaches the statutory retirement age and begins to enjoy basic pension insurance benefits in accordance with the law. In addition, cases of arbitration in Guangdong region (such as (2020) Yue 0306 Min Chu 39604, (2022) Yue 01 Min Zhong 7267) generally hold this view.
b. Adjudication viewpoint 2: The two parties constitute a labor relationship

Some arbitration authorities believe that overage workers who have not yet enjoyed basic pension insurance benefits can still form a labor relationship with the employer. For example, although Shandong has issued relevant opinions clearly stating that disputes between employers and employees who have exceeded the statutory retirement age do not belong to labor disputes, in some cases (such as (2020) Lu 0691 Min Chu No. 3873), the court held that the employee involved in the case had not yet enjoyed basic pension insurance benefits due to insufficient payment years, and the employer only terminated the labor contract with the employee based on the employee reaching the statutory retirement age, which is an illegal termination. Based on this, the court actually believes that for overage workers who have not yet enjoyed basic pension insurance benefits in accordance with the law, there can still be a labor relationship between them and the employer.

In addition, in the case where an overage worker does not enjoy basic pension insurance benefits but continues to work at the original employer, the reviewing authority may determine the existence of the labor relationship between the two parties based on the continued employment situation that conforms to the characteristics of the labor relationship. For example, in the case of (2023) Hu 0116 Min Chu 1938, the Shanghai court held this view. On the contrary, if an overage worker has reached the statutory retirement age when establishing an employment relationship with the employer, the adjudication authority may determine that the rehired overage worker and the employer should be treated as labor relations based on the fact that the overage worker no longer has the qualifications to establish a labor relationship (such as (2024) Hu 0118 Min Chu 4173, (2022) Hu 0105 Min Chu 1397).
c. Adjudication viewpoint three: The determination should be based on the reasons why the worker did not enjoy pension insurance benefits

In some regions, the arbitration authorities do not necessarily consider whether the employee has reached the statutory retirement age or whether they are entitled to basic pension insurance benefits in accordance with the law as the sole criterion for determining the nature of their relationship with the employer. Instead, they tend to substantially examine the reasons why the employee did not enjoy pension insurance benefits, and then determine the nature of the relationship between the two parties.

For example, in the case number (2022) Xinminzai 229 of the People's Court Case Library published by the Supreme People's Court in 2024, the Xinjiang High Court believed that if the termination of a labor contract is solely judged based on whether the employee enjoys basic pension insurance benefits, it may be unfair to the employer. However, if the employer is directly granted the right to terminate the labor contract due to the employee reaching the statutory retirement age, it will also cause damage to the legitimate rights and interests of the employee to a certain extent. Therefore, it should be specifically examined whether the reason why the employee cannot enjoy basic pension insurance benefits is related to the employer, in order to determine the nature of the relationship between the two parties. This case also echoes the views expressed in the "Interpretation and Application of the Supreme People's Court's New Judicial Interpretation on Labor Disputes (I)" compiled by the First Civil Trial Division of the Supreme People's Court.
（2） Can overage workers enjoy work-related injury insurance benefits under different relationship determinations?

At present, the legal provisions on the nature of the relationship between over aged workers and employers, as well as the protection of work-related injury insurance rights, are not clear enough at the legislative level, resulting in frequent disputes related to the recognition of work-related injuries among over aged workers in practice. Even between judicial and administrative authorities, there are conflicting viewpoints. In some cases, the arbitration authorities have determined that there is a labor relationship between overage workers and employers, but the human resources and social security department has supported the work-related injury determination of overage workers. The conflicting views of different review agencies, as well as the differences between some review agencies and administrative agencies, further highlight the necessity of a unified position on the protection of work-related injury insurance rights for overage workers.

Based on different relationships, the current situation of protecting the rights and interests of work-related injury insurance for overage workers can be roughly divided into the following situations:
1. Traditional view: Using labor relations as a prerequisite for overage workers to enjoy work-related injury insurance rights

Traditionally, as stipulated in the Work Injury Insurance Regulations, the recognition of labor relations is mostly regarded as a prerequisite for the application of work injury insurance rights in judicial practice. At the local level, multiple provinces and cities have also issued relevant regulations, although there are slight differences in the details, overall they are a reiteration of the spirit of the Work Injury Insurance Regulations. For example, Guangdong, Zhejiang, Chongqing, Liaoning, Jiangxi, Jilin and other places have issued relevant documents clarifying that applications for work-related injury recognition will not be accepted for overage workers who constitute labor relations.

Many local arbitration authorities also generally follow the above viewpoint, taking the labor relationship between overage workers and employers as a prerequisite for the former to enjoy work-related injury insurance benefits. For example, in the case of (2023) Jing 0113 Min Chu No. 3615, the Beijing court held that the employee involved had reached the statutory retirement age and was recognized as having a labor relationship with their employer, and therefore did not support the claim of work-related injury recognition. On the contrary, for those identified as labor relations, the adjudication authority tends to believe that workers can sue the employer for compensation through civil tort channels. In the case of Hu 0115 Min Chu 92785 (2018), the Shanghai court rejected the employer's claim for compensation based on work-related injury standards, stating that if an employee suffers personal injury during employment activities, the employer should bear civil liability for compensation.
2. Special circumstances: work-related injury protection for over aged workers with specific circumstances and identities

In fact, the Supreme People's Court and the Ministry of Human Resources and Social Security have paid attention to the issue of protecting the work-related injury rights and interests of over aged workers. Therefore, they have successively issued exception provisions for the application of the Work Injury Insurance Regulations to over aged workers under specific circumstances and identities, without directly discussing the establishment of a labor relationship or the recognition of a labor relationship between the two parties. For example:
(1) One of the special circumstances: Elderly workers who have not enjoyed basic pension insurance benefits and have been working in the same unit before and after exceeding the age limit

The first paragraph of Article 2 of the "Opinions of the Ministry of Human Resources and Social Security on Several Issues Concerning the Implementation of the Work Injury Insurance Regulations (II)" ("Opinions of the Ministry of Human Resources and Social Security (II)") stipulates that "if an employee reaches or exceeds the statutory retirement age but has not completed the retirement procedures or has not lawfully enjoyed the basic old-age insurance benefits for urban employees, and continues to work in the original employer while suffering from accidents or occupational diseases, the employer shall bear the liability for work injury insurance in accordance with the law." Therefore, for an overage worker who has not enjoyed the basic old-age insurance benefits and has worked in the same employer before and after exceeding the age limit, according to this provision of the "Opinions of the Ministry of Human Resources and Social Security (II)", the overage worker has the right to lawfully enjoy the benefits of work injury insurance.

In this special situation, in the practice of arbitration, the guiding spirit of the "Opinions of the Ministry of Human Resources and Social Security (II)" is basically followed, which tends to protect the work-related injury insurance rights and interests of overage workers who work in the same employer before and after exceeding their age limit. For example, in the case of (2020) Yue 19 Xing Zhong 31, Dongguan Intermediate People's Court, based on the provisions of the "Opinions of the Ministry of Human Resources and Social Security (II)", believed that the relevant provisions of the "Work Injury Insurance Regulations" should be applied to determine the work-related injury of Wang, who worked at Y Company before and after reaching retirement age. Y Company, as the employer, should bear the responsibility for work-related injury insurance.
(2) Special circumstance 2: The employer has already paid the work-related injury insurance premium for the overage worker

According to Article 2, Paragraph 2 of the Opinion of the Ministry of Human Resources and Social Security (II), "If an employer hires personnel who have reached or exceeded the statutory retirement age or have received basic old-age insurance benefits for urban employees and suffers from accidents or occupational diseases due to work reasons during the employment period, and the employer has already paid work-related injury insurance premiums for them through project insurance or other means, the Work Injury Insurance Regulations shall apply." In addition, the Administrative Trial Chamber of the Supreme People's Court also held in its reply to the question of whether a labor relationship exists between retired personnel and their current employer, and whether the Work Injury Insurance Regulations apply to injuries sustained during working hours ([2007] Xinghe Zi No. 6) that "according to the Work Injury Insurance Regulations According to relevant provisions such as Article 2 and Article 61, if a retired person is employed by their current employer and the current employer has already paid the work-related injury insurance premiums for them, and they suffer work-related injuries during their employment, they shall be dealt with in accordance with the relevant provisions of the Work Injury Insurance Regulations

Therefore, in the special situation where employers have already paid work-related injury insurance premiums for overage workers, the legislative level seems to no longer be limited to discussing the nature of the relationship between overage workers and employers, but tends to directly support such overage workers to enjoy work-related injury insurance rights under the Work Injury Insurance Regulations. This legislative spirit is also reflected in the judicial opinions of cases such as (2021) Jing03 Minzhong No. 20054 and (2023) Hu02 Xingzhong No. 9.
(3) Special circumstance three: Overweight workers belong to a special group of workers

The Supreme People's Court has repeatedly expressed biased opinions on the protection of work-related injury rights and interests for over aged workers with the special status of migrant workers. For example:

           

Based on this, the arbitration authorities usually tend to protect the rights and interests of over aged workers such as migrant workers, including work-related injury insurance. For example, in the case of Su 02 Xing Zhong No. 44 (2024), the Jiangsu court held that including migrant workers who have exceeded the statutory retirement age in the scope of protection under the Work Injury Insurance Regulations is in line with the legislative purpose of Article 1 of the Work Injury Insurance Regulations, which "guarantees medical treatment and economic compensation for employees who suffer accidents or occupational diseases due to work", and is conducive to safeguarding the legitimate rights and interests of workers.
3. Beneficial exploration: decoupling labor relations from the protection of work-related injury insurance rights for over aged workers

Although there are civil remedies available at the legal level for over aged workers who are recognized as labor relations, under the current civil law system in China, tort liability is usually based on the fault of the employing unit as compensation, and civil litigation follows the basic principle of "whoever asserts, who provides evidence". For over aged workers, on the one hand, they may lack the awareness of evidence collection, making it difficult to provide evidence in actual cases. On the other hand, after an accident occurs, it is also difficult to generalize the fault analysis of the cause of the accident. Therefore, in fact, it is difficult for overage workers to obtain relief and compensation through civil channels.

In this context, in recent years, there has been a growing view that social security rights such as work-related injury insurance should be "unbound" from the recognition of labor relations, in order to avoid the problem of the "absence" of basic rights protection such as work-related injury insurance rights for overage workers due to the uncertainty of the nature of the relationship between employers and overage workers, and to unleash greater momentum for the "silver economy". At the local legislative level, some beneficial explorations have been made in this regard. For example, Shanghai, Jiangsu, Hainan, Tianjin, Guangdong and other places have successively issued policies to include overage workers in the coverage of work-related injury insurance, or Guangdong and other places allow overage workers to claim relevant civil compensation costs from employers in accordance with the Work Injury Insurance Regulations, without specifically distinguishing the relationship between overage workers and employers.

           

As a result, some arbitration authorities no longer focus on discussing the nature of the relationship between overage workers and employers, but instead use whether there is a work-related injury recognition certificate issued by relevant administrative departments as the standard for determining whether overage workers can enjoy work-related injury insurance benefits. For example, in the case of (2023) Jing03 Minzhong 18338, the Beijing court held that although the company claimed that there was a labor relationship between it and Wang, the "Work Injury Insurance Regulations" should not be applied for compensation. However, after Wang was injured in an accident, he has now been recognized as a work-related injury by the Chaoyang District Human Resources and Social Security Bureau of Beijing, and has been identified as an employee's work-related injury and occupational disease disability level standard of ten. Based on this, the first instance court supported Wang's request for the company to bear the compensation for work-related injury insurance benefits, which is not inappropriate. The company has not applied for administrative reconsideration of the work-related injury determination conclusion, so in the case of existing work-related injury determination, the company's denial of its liability for work-related injury insurance is unfounded.
3、 Wipe your eyes and wait: How do employers manage work-related injury insurance for overage workers in compliance?

Looking at the current situation of legislation and arbitration practices in China, the lack of unified upper level legal provisions has led to inconsistencies in the legislative caliber and arbitration viewpoints regarding the protection of work-related injury insurance rights for over aged workers. However, from the beneficial explorations of the Supreme Court, the Ministry of Human Resources and Social Security, and legislative and arbitration agencies in various regions, we can see the positive attitude and determination of China to protect the work-related injury insurance rights of over aged workers and achieve "work security" and "elderly participation".

How to protect the work-related injury insurance rights of over aged workers has become an important issue for China to actively respond to aging and protect the occupational risks of over aged workers. The successive promulgation of the "Interpretation of the Supreme People's Court on the Application of Law in the Trial of Labor Dispute Cases (II) (Draft for Soliciting Opinions)" [2] and the "Measures" has to some extent determined the overall direction of increasing the protection of basic labor rights and interests such as work-related injury insurance for overage workers. However, in the future, how to implement it in practice and whether it can end the current situation of inconsistent legislative and judicial practice viewpoints need to be further observed after the detailed introduction of supporting regulations and policies.

Prior to this, considering the divergence and uncertainty of existing arbitration practices, we advise companies to:

Sort out the basic information of existing overage workers in advance, such as whether they have been working in the employer before and after overage, whether they have already enjoyed basic pension insurance benefits (if not, specific reasons and obstacles), and whether they have paid work-related injury insurance for overage employees;

Timely handle the termination of labor relations and retirement procedures for employees who meet the statutory retirement conditions; For retired and rehired personnel, timely sign a written agreement with them, clarifying the rights and obligations of both parties, such as the benefits and cost sharing of work-related injury insurance;

Based on the company's own employment environment and actual situation, consider purchasing commercial insurance for overage workers as a supplement to effectively cope with employment risks.