Guidelines on Recognizing Commuting Accidents as Work-related
Bongsoo Jung, Korean labor attorney at KangNam Labor Law Firm
I. Background to Recognizing a Commuting Accident as Work-related
Although the Industrial Accident Compensation Insurance (IACI) has not applied to accidents that occur while commuting in principle, accidents which occur during a commute using transportation provided by the employer or equivalent have been acknowledged as industrial accidents. Even if two similar accidents occur while commuting, the accident that occurred while using transportation provided by the employer was recognized as a work-related accident, while an accident which occurred while commuting on foot or using personal or public transportation was not so recognized. The Constitutional Court ruled that this application was unconstitutional and violated the principle of equality. The Court made a decision as non-constitutional for the related legal provision, stating that a legislative amendment was to be made by the end of 2017. Accordingly, the related provision was revised on September 28, 2017, and beginning January 1, 2018, accident insurance has been applied to accidents occurring during normal commutes.
II. Revisions of the IACI Act and Guidelines for Accidents Occurring during Commutes
1. Related legal provisions
A. The Industrial Accident Compensation Insurance Act: Article 37 (Standards for Recognition of Occupational Accidents)
(1) If a worker suffers any injury, disease, or disability or dies due to any of the following causes, it shall be deemed an occupational accident: Provided, that this shall not apply where there is no proximate causal relation between his/her duties and the accident:
1. Accident on duty: (Contents omitted)
2. Occupational disease: (Contents omitted)
3. Accident occurring during a commute:
(A) Accidents that occur while commuting to work under the control of the employer, such as using transportation provided by the employer or equivalent transportation;
(B) Accidents that occur while commuting to work in common routes and manners.
(2) No injury, disease, disability or death of a worker due to his/her intentional action, self-harm or other criminal act, or caused by such act shall be deemed an occupational accident. (The following omitted).
(3) If there is a deviation or interruption of the commuting route as per Subparagraph 3 (B) of Paragraph (1), the accident during the deviation or interruption and subsequent movement during the commute shall not be regarded as a work-related accident. However, if the deviation or interruption of the commuting route is an act necessary for daily life and there is a reason prescribed by Presidential Decree, it shall be deemed to be a work-related commuting accident.
B. Enforcement Decree of IACI Act: Article 35 (Accident during commuting)
(1) If an accident that occurred while a worker was commuting to work falls under all of the requirements of the following subparagraphs, it shall be deemed to be a commuting accident according to Article 37 (1) 3 of the Act.
1. An accident will have occurred while using the means of transportation provided by the employer for commuting or the means provided by the employer.
2. The management or use of the means of transportation used for commuting should not belong to exclusive workers.
(2) In the proviso of Article 37 (3) of the IACI Act, the term "the reason prescribed by Presidential Decree as an act necessary for daily life" means any of the following instances:
1. Buying necessary supplies for daily life;
2. Receiving education or training in accordance with Article 2 of the Higher Education Act or at vocational education and training institutions under Article 2 of the Vocational Education and Training Promotion Ac」 which can contribute to vocational ability development;
3. Exercising the right to vote;
4. Taking or bringing a child or disabled person under the care of an employee to a child care or educational institution;
5. Receiving medical treatment at a medical institution or public health center for the purpose of treating or preventing a disease;
6. Caring for a family member at a medical institution in a family that needs the worker's care;
7. Acts in accordance with the provisions of Items 1 to 6 which the Minister of Employment and Labor considers to be necessary for daily life, such as buying supplies necessary for daily life.
2. Guidelines for handling accidents which occur while commuting
(1) Basic concept of commuting: The term "commuting" refers to the movement between a residence and a place of employment or movement from one place of employment to another place of employment (Article 5 (8) of the IACI). An “accident occurring while commuting” is accepted as work-related if it occurs while traveling in relation to employment. That is, an accident occurring during the commute movement process is applicable, but not an accident which occurs while staying in a specific place on the route.
(2) Principles for recognizing work-related accidents for regular commuting: Accidents during commute are those that meet all of the following requirements, since the risks associated with normal commuting are specified:
① It must be a moving act that makes the "place of employment" such as a company, factory etc. and the "home" such as personal residence, etc. as a start or end point;
② It is assumed that the commuting activity is to be carried out before work begins or after the work is done;
③ It is assumed that commuting acts will be carried out according to "conventional routes and methods" in a social sense, and that there will be no "deviation or interruption".
III. Specific Criteria for Determining Commuting Accidents as Work-related
1. Residence
"Residence" refers to a base for providing labor or housing in which a worker practically resides. Therefore, all of the following instances are accepted as a residence:
① Sheltered residence: A place where a worker, alone or with a spouse, child, parent, or grandparent has lived or is expected to live for a considerable period of time.
② Non-lodging residence: When it is difficult to move daily considering the distance, time, and transportation difficulties between a residence and place of work, it becomes necessary to arrange for separate accommodation nearer the place of work and to commute to and from this place.
③ Temporary housing: Temporary accommodation for unavoidable reasons such as work, traffic disruption, natural disasters, etc.
2. Employment Relevance and Place of Employment
(1) Employment Relevance: In Article 5 (8) of the Act, the term "in relation to employment" refers to any act in which commuting is related to going to or coming home from work. In the event of an accident occurring beyond the normal commute time, it is necessary to check the facts such as the specific schedule before or after the work time and the distance between the residence and the workplace to judge whether the work is relevant or not. If a worker stops working after a considerable amount of time in the workplace (within approximately two hours) due to non-work reasons after the work day has finished, this is interpreted as having no employment relevance.
(2) Concept of place of employment: "Place of employment" is a place where workers provide labor, and it is a place where ordinary work is performed in accordance with labor contracts and employment rules, such as company and factory offices.
3. Usual commuting routes and methods
A "usual commuting route" means a route between residential and employment locations, or places of employment and places of employment, that can be utilized by ordinary people. Therefore, if an accident occurs outside the normal commuting route, it is not recognized as a commuting accident. "Usual commuting method" means the use of transportation in a rational way as recognized by socially-accepted rationale.
4. Deviation and suspension from route
(1) "Deviation from route" refers to an act that differs from the ordinary commuting route, while "suspension from route" refers to an act that does not relate to commuting while on the commuting route. The deviation or stopping on the commute route must be caused by private activity not related to the purpose of the commute. However, minor acts (such as picking up a newspaper, getting gas, having a cup of coffee, washroom breaks, or having a shower) that normally occur during commute time are not regarded as deviations or interruptions from the route.
(2) Exceptions to application of deviations and suspension from route (① ~ ⑦ below): Exceptions to deviation and suspension from route due to activities necessary for daily life that may occur during normal commuting are recognized as exceptions. In the case of a recognized deviation or suspension from route, only an accident on the move is protected; not the whole process.
① Purchasing goods necessary for everyday life: Purchase of daily necessities is judged based on comprehensive consideration of the location and distance of the place of sale, necessity of action, urgency, time required, etc.
② Education or training that can contribute to vocational ability development in the vocational education and training institutions pursuant to Article 2 of the Higher Education Act or Article 2 of the Vocational Education and Training Promotion Act: Deviations and suspensions from route in order to participate in some hobby club or exercise are excluded. However, even if it is a flower arrangement or a sports dance, deviations and suspensions from route for the development of vocational abilities, such as acquisition of qualifications other than hobbies, are recognized.
③ The right to participate in voting or the right to vote: The right to participate in voting means the right to vote by participating in an election (the presidential election and the parliamentary election are typical), and the term "referendum" means an act in which a citizen of a certain age exercises the right to vote on important matters of national policy.
④ The act of bringing a child or disabled person virtually protected by an employee to a child care institution or an educational institution or bringing him/her from an institution: "Child" means a person who is in the age range of childcare, kindergarten, elementary, middle and high school. "Persons with disabilities" means a person with disabilities covered under the Welfare of Persons with Disabilities Act.
⑤ An act to receive medical care for treatment or prevention of disease at a medical institution or public health center: It is permitted to detour for medical treatment or preventive purposes during a commute, but not for everyday life items such as consultation for cosmetic purposes.
⑥ Caring for a family member at a medical institution: To take care of a family member etc. who is hospitalized at a medical institution.
⑦ Acts that are in conformity with the provisions of Items 1 to 6 and which the Minister of Employment and Labor deems necessary for daily life:
Acts that comply with the provisions of No. 1: Activities that occur repeatedly for the purpose of daily living (going to a laundry, repairing shoes). Acts of daily living, such as eating, drinking, ablutions, etc.; an act performed through business necessity (eating a meal at work on the grounds that there is no restaurant in the workplace; bathing outside the workplace because the business does not have shower facilities)
Acts in conformity with the provisions of No. 2: Participate in training for improvement of vocational skills at academies. To be educated or trained for improvement of vocational ability, such as a foreign language academy, computer academy (Hangul, Excel etc.), driver's license school.
Acts in accordance with the provisions of No. 3: Exercising the right to vote as prescribed by law, such as the election of labor union officers or the election of apartment tenants’ officers.
Acts in conformity with No. 4: The act of bringing a child or a disabled person to a nursing home, not a childcare institution, or bringing him/her to a consignment agency such as a welfare center for the disabled or a daycare facility.
Acts in accordance with the provisions of No. 5: attending a health center or smoking cessation clinic.
Acts in accordance with Regulation 6: Caring for a family member in a nursing home or similar place where the address is different from that of the worker.
5. Judging whether or not a criminal act applies:
According to Article 37 (2) of the IACI Act, commuting accidents caused by criminal activities (drunk driving, unlicensed driving, intruding on the main line, etc.) are not accepted as commuting accidents in principle.
IV. General information related to commuting accidents
1. Comparison between IAC insurance and automobile insurance
If a commuting accident is related to an automobile accident, the worker can choose which type of insurance to apply; either industrial accident compensation insurance or automobile insurance, depending on the degree of compensation. As a general criterion for this choice: 1) industrial accidents are more favorable for those with a disability grade 7 or higher; 2) automobile insurance is advantageous for those younger in age or with less responsibility for the accident. The industrial accident compensation insurance is compensated at a fixed amount irrespective of fault.
2. Whether the premium rate increases or not due to IACI applications
For industrial accident compensation insurance treatment due to a commuting accident, it is not an accident occurring under the control of the employer because commuting accidents occur outside the workplace. Therefore, it does not affect the insurance premium.
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