Whether migrant workers over retirement age are entitled to work related injury insurance benefits

If a worker reaches the statutory retirement age, that is, he does not have the statutory qualifications as a worker, and the employer hires him or her employment is not an employment relationship, is not subject to the adjustment of labor laws and regulations, and does not apply to the Regulations on Work-related Injury Insurance, and cannot apply for work-related injury recognition. If an accident is injured at work, the employer shall be liable for compensation according to the personal injury, but if the person is at fault, the liability for compensation may be reduced.

However, according to Article 2 of the Opinions (II) on Several Issues Concerning the Implementation of the Regulations on Work-related Injury Insurance issued by the Ministry of Human Resources and Social Security (No. 29 of 2016), a security guard who has worked in the unit before the age of 60 and has not retired to receive a basic pension can apply for work-related injury identification, and the employer shall bear the work-related injury insurance liability; Those who have paid work-related injury insurance premiums can also be identified as work-related injuries and enjoy work-related injury insurance benefits.

Supreme People's Court.

Interpretation on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (III).

Legal Interpretation 2010 No. 12.

Article 7 Where an employment dispute arises between an employer and a person who has been entitled to pension insurance benefits or received a pension in accordance with the law, and a lawsuit is filed with the people's court, the people's court shall handle it in accordance with the labor relationship.

Ministry of Human Resources and Social Security.

Opinions on Several Issues Concerning the Implementation of the Regulations on Work-related Injury Insurance (II).

Ministry of Human Resources and Social Security issued 2016 No. 29.

2. If a person reaches or exceeds the statutory retirement age, but fails to go through the retirement formalities or does not enjoy the basic old-age insurance benefits for urban employees in accordance with the law, and continues to be injured in an accident or suffers from an occupational disease while working at the original employer, the employer shall bear the liability for work-related injury insurance in accordance with the law.

If an employer recruits a person who has reached or exceeded the statutory retirement age or has received the basic pension insurance benefits for urban employees, and is injured by an accident or suffers from an occupational disease due to work-related reasons during the employment period, the Regulations on Work-related Injury Insurance shall apply if the employing unit has paid work-related injury insurance premiums for the employee by participating in the insurance according to the project.

If you pay work-related injury insurance, you will enjoy work-related injury insurance benefits, but if you do not pay, you will not be able to enjoy it.

If the retirement age is exceeded, the Social Security Bureau will not handle it!

If you have exceeded the statutory retirement age, you will not be able to enjoy the benefits of work-related injury insurance. This is mainly due to the fact that the retirement age of staff members and the work-related injury benefits to which they are entitled are clearly stipulated in our labour law. If they choose to continue working after they are over the age, the employer does not need to pay social security for them at this time.

Because when you reach retirement age, you can suspend your social security contributions, including work-related injury insurance. <>

Although they are not able to pay work-related injury insurance, they can apply for compensation to the employer in accordance with the law. This is mainly because since there are labor facts between the two parties, if there is an injury, the employee can file a lawsuit with the court or apply to the labor arbitration institution for arbitration. Relying on the fact of labor on both sides, let the employer pay compensation, of course, there is a prerequisite here, that is, you are indeed working here.

The reason why there is no way to continue to enjoy the benefits of work-related injury insurance after retirement is mainly due to the fact that the higher the age, the higher the probability of risk. In order to better reduce costs, some units tend to use some older personnel. At this time, it is necessary to consider their employment costs and the social risks they generate.

In order to be able to make more use of young people to replace vacant jobs instead of older people. Therefore, after reaching the statutory social retirement age, they will not be asked to pay work-related injury insurance for people who are over 60 years old. <>

This is especially true in construction companies. Therefore, there is no clear regulation on the retirement age, and in the work-related injury insurance on the construction project, as long as the person belonging to the project is injured again, it needs to be paid through insurance. At the same time, in China's law, if you are injured on the way to and from work, it should also be recognized as a work-related injury.

From this, it can be seen that the protection of workers by law is relatively comprehensive.

If a person who has reached the statutory retirement age is injured at work, as long as the employer pays the insurance premiums to the employee on time, he can still enjoy the work-related injury insurance benefits. According to Articles 2 and 61 of the Regulations on Work-related Injury Insurance, if a retiree is employed by his current employer, and the current employer has paid work-related injury insurance premiums for him, and he is injured in an accident during the period of employment, the relevant provisions of the Regulations on Work-related Injury Insurance shall apply.

What benefits can I enjoy after a work-related injury?

If the injured employee still needs ** during or after the expiration of medical treatment, he shall benefit from medical treatment for occupational disability. Occupational disability medical treatment includes: ** expenses, hospitalization expenses, medical expenses, medical travel expenses, and employees need to be treated due to occupational injuries or occupational diseases.

If the injured employee needs to be hospitalized**, he will receive two-thirds of the local Zhang's meal allowance for business trips; If the transfer is approved, the transportation expenses and accommodation expenses shall be reimbursed according to the business trip standards of the enterprise's employees. <>

What are the conditions for not being eligible for work-related injury benefits?

The purpose of the work-related injury insurance system is to provide medical and economic compensation for injured employees who have suffered accidental injuries or loss or partial loss of working ability due to occupational diseases. If the injured worker's circumstances change during the period of receiving workers' compensation insurance benefits and they are no longer able to benefit from the work-related injury, the contribution to the work-related injury ceases if their ability to work can be fully restored without the protection provided by the workers' compensation insurance system.

Refusal to assess the ability to work.

The assessment of work ability is a prerequisite for workers with disabilities to enjoy different levels of insurance benefits. If the injured worker is relatively stable after ** and has a disability that affects his or her ability to work, they will only be able to enjoy the relevant level of work-related injury insurance benefits after their ability to work has been assessed. In other words, varying degrees of incapacity can make it impossible for a worker to perform the normal occupation for which he was originally suitable, and even lead to the fact that he is no longer able to perform any work, and he can also regain his ability to work and continue to work in a profession or work that suits him.

If a person has reached the statutory retirement age and is injured during the working period due to work-related reasons, he or she can enjoy work-related injury insurance benefits.

This is not allowed, because the general work-related injury insurance benefits are only available to in-service employees, and if you go out, the employer will not pay work-related injury insurance for you.

This depends on whether there is an employment relationship with the employer, and if there is an employment relationship, you can enjoy work-related injury benefits if you are injured in the line of duty.

Legal analysis: These migrant workers who have passed the retirement age are not entitled to work-related injury benefits, not only for migrant workers, even if they are urban workers, they do not have the main qualifications of workers stipulated in the law when they have reached the statutory retirement age, and the relationship established between them and the employer is only a labor employment relationship, so they cannot enjoy work-related injury benefits.

Legal basis: Article 2 of the Regulations of the People's Republic of China on Work-related Injury Insurance stipulates that enterprises, public institutions, social organizations, private non-enterprise units, associations, law firms, accounting firms and other organizations within the territory of the People's Republic of China and individual industrial and commercial households with employees (hereinafter referred to as "employers") shall participate in work-related injury insurance in accordance with the provisions of these Regulations, and pay work-related injury insurance premiums for all employees or employees (hereinafter referred to as "employees") of the unit.

Legal Analysis: Yes. The Reply of the Administrative Tribunal of the Supreme People's Court on Whether the Regulations on Work-related Injury Insurance Should Be Applied to Migrant Workers and Farmers Who Have Exceeded the Statutory Retirement Age for Work-related Injuries shall be determined by the relevant provisions of the Regulations on Work-related Injury Insurance if they are employed by an employer who have exceeded the statutory retirement age and are employed during working hours and due to work-related reasons.

When an injury accident occurs at work or is deemed to be at work, the relationship between the employee and the employer is still an employment relationship, and the Regulations on Work-related Injury Insurance may be applied subject to the adjustment of the Labor Law, and the employee is entitled to work-related injury insurance benefits.

Legal basis: Social Insurance Law of the People's Republic of China

Article 38 The following expenses incurred due to work-related injuries shall be paid from work-related injury insurance** in accordance with the provisions of the State:

a) **Medical expenses and **expenses for work-related injuries;

2) Hospitalization meal subsidy;

3) Transportation, food and lodging expenses for medical treatment outside the overall planning area;

4) The cost of installing and configuring assistive devices for the disabled;

5) For those who are unable to take care of themselves, the living care expenses confirmed by the Labor Ability Appraisal Committee;

6) A one-time disability allowance and a monthly disability allowance for disabled employees of grades 1 to 4;

7) A one-time medical subsidy that shall be enjoyed when the labor contract is terminated or dissolved;

8) In the case of work-related death, the funeral allowance, pension for dependent relatives and work-related death allowance received by the surviving family members;

9) Labor ability appraisal fee.

Article 39 The following expenses incurred as a result of work-related injuries shall be paid by the employer in accordance with the provisions of the State:

1) **Wages and benefits during the work-related injury;

2) Disability allowance received on a monthly basis by employees with disabilities in grades 5 and 6;

3) A one-time disability employment subsidy that shall be enjoyed when the labor contract is terminated or dissolved.

Article 41 Where an employee's employer fails to pay work-related injury insurance premiums in accordance with law, and a work-related accident occurs, the employer shall pay work-related injury insurance benefits. If the employer does not pay, it shall be paid in advance from the work-related injury insurance**.

The work-related injury insurance benefits paid in advance from the work-related injury insurance** shall be reimbursed by the employer. If the employer fails to repay, the social insurance agency may recover compensation in accordance with the provisions of Article 63 of this Law.

Analysis of the law:

Migrant workers and farmers employed by an employer who have exceeded the statutory retirement age shall apply the relevant provisions of the Regulations on Work-related Injury Insurance to determine the work-related injury and enjoy work-related injury insurance benefits if they are employed by the employer during working hours and due to work-related reasons.

Legal basis: Labor Contract Law of the People's Republic of China

Article 3 The conclusion of a labor contract shall follow the principles of legality, fairness, equality, voluntariness, consensus, and good faith. The labor contract concluded in accordance with the law is binding, and the employer and the employee shall perform the obligations stipulated in the labor contract.

Article 10 A written labor contract shall be concluded for the establishment of labor relations. If a labor relationship has been established and a written labor contract has not been concluded at the same time, a written labor contract shall be concluded within one month from the date of employment. If the employer and the employee conclude a labor contract before employment, the employment relationship shall be established from the date of employment.

Article 36 The employer and the workers may terminate the labor contract if they reach a consensus through consultation.