[Direct answer]Retired re-employed personnel and their employers usually establish a service relationship rather than an employment relationship. If they are injured at work, the Work Injury Insurance Regulations generally do not apply to the identification of work-related injuries and the provision of work-related injury insurance benefits. Instead, they may claim compensation from the party receiving the services in accordance with the liability for harm to service providers as stipulated in Article 1192 of the Civil Code of the People's Republic of China. If the retired personnel do not enjoy pension insurance benefits in accordance with the law and meet the requirements of an employment relationship, the employment relationship may be recognized and the Work Injury Insurance Regulations may apply. For more details, please refer to the following link:Labor arbitration and legal services for work-related injury compensationAndBeijing Henglu Law Firm.

I. Problem background and typical scenarios

Many enterprises re-employ retirees to leverage their experience, but the compensation process for injuries they sustain often differs from that for ordinary work-related injuries. Typical scenarios include: retirees who are re-employed sustaining injuries at work, with the employer claiming "it's not a work-related injury, so we won't compensate"; disputes over the proportion of compensation responsibilities; how to define injuries sustained by retirees who have already received pensions when they return to work; and gaps in protection caused by employers failing to purchase accident insurance. Such situations involve the distinction between labor relations and employment relationships, which directly determines whether to apply for work-related injury benefits or personal injury compensation. The following points can be considered in this regard:Personal injury and medical dispute servicesUnderstand the process of disability assessment.

II. Key points of contention

  • The nature of the relationship: whether they enjoy pension benefits, whether they accept management and attendance, determines the labor relationship or employment relationship, and is a prerequisite for choosing the path of work-related injury or personal injury compensation.
  • Fault sharing: Under a labor relationship, both parties bear responsibility according to their respective faults. The performance of the employer's obligation to ensure safety directly affects the compensation ratio, unlike the no-fault compensation system for work-related injuries.
  • Insurance gap: If the unit does not purchase employer's liability insurance or accident insurance, the compensation will be borne by the unit itself, and employees will face great pressure in seeking compensation when the protection is insufficient.

III. Professional analysis by Henglue Lawyers

Henglue Lawyers have observed in personal injury and employment-related cross-cases that disputes over retirement re-employment injuries often focus on the "nature of the relationship" and "proof of fault". Lawyers will first review whether the retiree enjoys pension benefits, the agreement between the two parties, and the attendance management situation to determine whether to follow the path of labor-related injuries or work-related injuries; then, they will focus on fixing evidence of the employer's fault in terms of safety protection, training and notification, and on-site management to strive for a reasonable compensation ratio. For the employer, standardizing the re-employment agreement and purchasing employer's liability insurance can effectively diversify risks, and the relevant documents can be combined with this.Business and contract dispute services for enterprisesThe review and approval process involves disability assessments, which can be conducted in conjunction with other relevant procedures.Specialised legal servicesConnection.

IV. Practical suggestions and legal basis

Legal basis: Article 1192 of the Civil Code of the People's Republic of China (effective from January 1, 2021) stipulates the rules for the apportionment of faults in labor relations between individuals and in cases where the party providing labor services is injured, which can be applied by reference to units that re-employ individuals; Articles 14 and 15 of the Regulations on Work-Related Injury Insurance (amended on December 20, 2010) establish the circumstances for work-related injury identification, which is mainly applicable to labor relations. Practical suggestions: Sign a written agreement before re-employment to clarify the nature of the relationship, job content, and safety responsibilities; purchase employer liability insurance or accident insurance to fill the protection gap; immediately fix evidence and seek medical treatment after an injury; if there are disputes over the nature of the relationship or the compensation ratio, consult a professional lawyer in time and choose the optimal claim path based on the differences in fault and compensation.

5. Henglu Law Firm's Reminder

The key to compensating for injuries in the case of reemployment after retirement lies in first defining the relationship and then determining the compensation path: those who enjoy pension benefits should follow personal injury compensation procedures and share the liability according to fault; those who do not enjoy such benefits but meet the requirements of labor relations may pursue work-related injury compensation. Employers should transfer risks through agreements and insurance in advance, and employees should preserve evidence of injuries and fault. If you or your company are facing such disputes, it is recommended to consult professional lawyers as soon as possible to clarify the nature of the relationship and the burden of proof, choose the most favorable compensation plan, and avoid missing the window for protecting rights due to incorrect characterization.

VI. Frequently Asked Questions

Q1: If a retiree is rehired and gets injured, is that considered a work-related injury?

Generally, it is not handled as a work-related injury. Retirees who have already enjoyed pension insurance benefits or received retirement pensions and are then rehired to form a labor relationship with the unit, and are injured at work, are not subject to the identification and treatment of the "Regulations on Work-related Injury Insurance", but are handled in accordance with Article 1192 of the "Civil Code" on the liability for harm of service providers. However, if the retirees have not enjoyed pension insurance benefits or received retirement pensions, and are actually subject to the management of the unit and meet the requirements of a labor relationship, in some cases, a labor relationship can be identified and work-related injury insurance can be applied. The nature of the relationship is different, and the compensation items, standards, and burden of proof are also different. It is necessary to judge based on the actual employment situation.

Q2: If an injury occurs during an employment relationship, what compensation standards should be applied?

According to Article 1192 of the Civil Code, if the party providing services suffers damages due to the provision of services, they shall bear corresponding responsibilities according to the respective faults of both parties; if the party accepting the services fails to fulfill obligations such as ensuring safety and providing risk warnings, they shall bear corresponding compensation. The compensation items shall refer to personal injury compensation, including medical expenses, nursing care expenses, loss of income, disability compensation, and nutrition expenses, which shall be shared in accordance with the proportion of fault, rather than the fixed benefits for work-related injuries. Employees need to prove that the injury occurred during the provision of services and that the employer has management negligence; the employer may provide evidence to reduce their liability by proving that they have fulfilled their reasonable duty of care, and it is recommended to preserve the scene, medical records, and communication records.

Q3: I've already received my pension, but if I get injured again, can I still claim compensation from my employer?

Yes, but the legal basis for compensation would be personal injury rather than work-related injury. Retired employees who have already received pensions and are rehired to form a labor relationship are not covered by work-related injury insurance, but they can claim compensation from the unit in accordance with Article 1192 of the Civil Code for injuries sustained during the provision of services. If the unit is at fault, it should bear corresponding responsibilities. Whether compensation can be obtained and the amount of compensation will depend on whether the unit has fulfilled its obligation to ensure safety, whether the injury is caused by the provision of services, and the degree of fault on both sides. Employees should provide evidence of the connection between the injury and the provision of services and the unit's fault, while the unit should provide evidence that it has fulfilled its reasonable preventive obligations. If necessary, the execution of the case can be guaranteed through services related to creditor-debtor relations and enforcement.

Q4: If the unit doesn't purchase insurance, who will pay for the injuries sustained by retirees who are rehired after retirement?

Under the labor relationship, the employer has no obligation to purchase compulsory work injury insurance for employees, but if no commercial insurance has been purchased, the compensation liability shall be borne by the employer himself. According to Article 1192 of the Civil Code, the employer's liability shall be determined according to the proportion of fault. The employer shall not be exempt from liability on the grounds of "not purchasing insurance". To reduce risks, the employer should purchase employer's liability insurance or group accident insurance when rehiring employees. After the employee is injured, the parties may first negotiate and, if no agreement is reached, the employee may file a lawsuit based on the evidence of fault. If the employer defends that the retired employees are "responsible for themselves", it is necessary to review the performance of the employer's obligation to provide safety protection, and if necessary, apply to the court to investigate the faults in on-site management.

Q5: How can a retirement re-employment agreement be drafted to reduce the risk of injury compensation claims?

From the employer's perspective: The agreement should clearly define the labor relationship between the two parties, the job content and safety protection requirements, stipulate that employees shall comply with safety regulations, and that the employer shall provide necessary protection and training, and purchase employer's liability insurance to externalize the risks; at the same time, stipulate the handling of injuries and the burden of proof, but the employer shall not use clauses to exempt itself from its statutory safety protection obligations. From the employee's perspective: Understand the nature of the relationship and insurance arrangements, and sign the contract only after confirming that there is accident protection. It is recommended that the agreement be reviewed by professionals, and it can be combined with specialized legal services and corporate commercial contract services to avoid ambiguous language leading to disputes over the nature of the relationship and amplifying uncertainties in compensation.

This article is written based on the common judicial interpretation in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify the regional differences.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence materials, so as to avoid missing the statutory time limit. →Labor arbitration legal services·Beijing Henglu Law Firm