Answer:
A labour accident is one that causes injures to any body part, function, or lead to the death of an Employee and occurs while the Employee is working, which relates to the job or task being performed.[1]
Pursuant to the Law on Labour Safety and Hygiene, Any Employee who has an accident on the commute within the reasonable time frame and route will be entitled to allowances and compensations paid by the Employer and the regime of labour accident provided by the labour accident and occupational disease insurance fund, as prescribed by the Law on SI.[2]
Therefore, on the basis of the above regulations, accidents happening on the commute can be considered as a labour accident if it happens within a reasonable time frame and route. In other words, the location and time at which the accident occurs is the factor to determine a labour accident in this case. However, the Law on Labour Safety and Hygiene as well as its guiding by-law documents do not have any regulation to help determine the factor “within the reasonable time-frame and route” as a basis to determine an accident. By a reference to an expired regulation “within the reasonable time and route-frame and route” is construed as follows:[3]
- “The reasonable time-frame” means the necessary time for the Employee commuting before and after the working hours; and
- “The reasonable route” means the regular route that the Employee commutes to work from the permanent or temporary registration residence and the workplace.
According to the above-mentioned regulations, the factor “within the reasonable time-frame and route” to decide if an accident is a labour accident will depend primarily on the judgement of the competent State authority which is in charge of accident investigation. Only if Such an authority determines that occurred accident satisfies the conditions on the location and time, such an accident will be considered a labour accident, and then the Employee may be entitled to receive allowances, compensations and the regime of labour accident as regulated by applicable laws.
- The Employer’s responsibilities toward the Employee who has a labour accident on the commute
Any Employee who has a labour accident while commuting between the residence and the workplace, if it is due to the fault of other people or in case the person causing the accident cannot be identified, the Employer has to pay allowances to the Employee, depending on the corresponding reduction of the working capacity of the Employee as follows:[4]
- At least 40% of 1.5 months of salary if the reduction of working capacity is 5%-10%; if the reduction of working capacity from 11-80%, 0.4 months of salary will be added for every 1%; and
- At least 40% of 30 months of salary for the Employee whose working capacity is reduced by 81% and over or for the relatives of the Employee who die due to labour accidents or occupational diseases.
In addition, the Employee will not be entitled to the above-said regime from the Employer if the accident happens due to one of the following causes:[5]
- Due to conflicts between the Employee and the person causing the accident without relevance to the job or task assigned;
- Since the Employee deliberately harms himself or herself; or
- Since the Employee uses drugs or other addictive substances prohibited by law.
2. Entitlement to the regime of the labour accident
When an accident happening on the commute is determined as a labour accident, in addition to the allowances paid by the Employer as mentioned in Section 2 above, the Employee subject of participation in compulsory SI are also entitled to the regime of labour accident provided by the labour accident and occupational disease insurance fund- a component fund of the SI fund, as prescribed by the Law on SI.
Specifically, the Employee having accident on the commute will be entitled to the regime of labour accident if his or her working capacity is reduced by 5% or over.[6] Concurrently, the labour accident happens not due to one of the causes as mentioned in Section 2 above.[7] The Employee will be entitled to the labour accident allowance based on the decrease of working capacity, the level and time of contribution to the labour accident and occupational disease fund.[8]
[1] Article 3.8 of Law on Labour Safety and Hygiene
[2] Aricle 39.2, Article 45.1(c) of Law on Labour Safety and Hygiene
[3] Article 19.3 of Decree 152/2006/ND-CP of the Government dated 22 December 2006
[4] Article 38.4, Article 38.5 and Article 39.2 of Law on Labour Safety and Hygiene
[5] Article 40 of Law on Labour Safety and Hygiene
[6] Article 45.2 of Law on Labour Safety and Hygiene
[7] Article 40 and Article 45.3 of Law on Labour Safety and Hygiene
[8] Article 41.3 of Law on Labour Safety and Hygiene
