Lately, there was a news report about a worker in Tainan who rode an extra five minutes of distance to get savory porridge for breakfast on his way to working place, and got into an accident. At the end, the court found that such an accident is considered as occupational accident. This judgement stirred up a controversy and triggered rivalry among different cities/counties around Taiwan for the title of best breakfast in Taiwan at the same time. To employees, it is just as a Taiwanese idiom goes, “having meals is as important as an emperor.” However, to employers, it is their strict liabilities to compensate employees if  an occupational accident ever happens on the way , which is not a small risk.

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Hence, it is one of the top issues in enterprise risk-management to clarify whether an accident that occurs during one’s commute to work is considered as occupational accident and how an employer can lower its risk for compensation.Based on the relevant provisions in the Regulations of the Examination of Injuries and Diseases Resulting from the Performance of Duties by the Insured Persons of the Labor Insurance Program (hereinafter the “Regulations”), and the opinions of the competent authority and the majority of the opinions in practice, if an accident occurs “at the time an employee prepares to perform the services,” “at a proper time,” “on the way of round trips from the employee’s daily residences to the employment places,” and “on the route that should be taken,” such an accident would be deemed occupational accident.

However, one should note that the commuting accidents caused by the employee’s own violation of the law (e.g. running a red light, drunk driving, etc.) are not considered as occupational accidents. As to how one should interpret the criteria of “at a proper time” and “on the route that should be taken,” it is no doubt a question shared by many.

The court currently is yet to have a consistent standard but has to rule depending on the overall circumstances of the case. However, judgments in practice do provide reasoning that one should consider the reasonableness of a commute time and commute route in order to decide whether a commute accident should be considered as an occupational accident. A reasonable commute time and a reasonable commute route are not determined by the shortest time and route to and from work, nor are determined by the routes planned in Google Map.

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Fortunately, judgments in practice do provide detailed ruling rationale regarding two common types of commute accidents: those that occur when “buying breakfast” and “picking up/dropping off kids.”For a “buying breakfast” commute accident, the latest judgment ruled by the Tainan District Court holds that, although the worker made a detour to get porridge after work, it is a personal to-do-list that some locals in Tainan do daily in life. Even though the route was not the shortest route from working place to residence, it only took an extra four to five minutes. According to the doctrine of social experience, it was still within a reasonable scope of living sphere and should be considered as a reasonable commute route. Hence, the accident is considered as an occupational accident.

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However, there is another judgment holds that, the worker should have driven in the southwest direction to go to working place; instead, the worker went northeast to a breakfast shop which was 1 km away from his residence. This route did not constitute a reasonable route from the worker’s residence to working place and the accident shall not be considered as an occupational accident.  For a “picking up/dropping off kids” commute accident, one judgment holds that, picking up/dropping off kids are personal activities which are not related to work. In addition, if the location to drop off or pick up kids is in a direction different from the way to working place, it is obviously not a reasonable route and shall not be considered as an occupational accident. However, there is another judgment holds that, picking up/dropping off kids are “necessary activities in daily life” for parents nowadays.

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One should use the worker’s residence as the center of the circle, the routes within the scope of a certain radius should be considered a “reasonable route” for picking up/dropping off kids. Any traffic accidents that occur within this scope shall be deemed an occupational accident.According to Article 59 of the Labor Standards Act, when an occupational accident happened to a worker, the employer shall pay compensation to a worker who is dead, injured, disabled or sick under strict liability regardless whether the employer is at fault or not. In addition, when a worker under medical treatment is not able to work, the employer shall pay him/her compensation according to his/her wage.Since commute accidents are often accidents which are difficult to prevent, the best way to conduct risk-management is through providing labor insurance for the workers.

The benefits received by workers from the Labor Insurance Bureau can be used as deductions by the employer, which can also reduce the employer’s compensation liability. Lately, the Legislative Yuan passed the Worker Occupational Accidents Insurance and Protection Act, with more workers insured and higher payouts  for many types of accidents.

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It not only provides better protection for workers when the occupational accidents occur, but also provides employers higher amount of deduction, which makes a win-win situation for both workers and employers.Lastly, whether you are the people of  Kaohsiung who want to get a Nabeyaki egg noodles for breakfast, or the people of Tainan who want to get a beef soup for breakfast, or a parent who need to pick up and drop off kids on the way to or from working place, you should go by the “reasonable commute time and commute route” principle adopted by the aforementioned Regulations and court judgments to determine if your commute accident is considered as occupational accidents or not. At the same time, it is recommended that employers should provide labor insurance for all their workers.

Otherwise, the employer not only runs the risk of being penalized by the competent authority, but also may face a large amount of compensation for occupational accident under strict liability.

(This article was published in the Expert’s Commentary Column of the Commercial Times. https://view.ctee.com.tw/legal/29042.html)