Question:
Dear Lawyer, an employee of our company was involved in a traffic accident on their way home from work, resulting in injuries. The accident occurred 15 minutes after the end of the workday and took place in the area where the employee temporarily resides. The employee suffered a broken right leg.
Based on the above situation, I would like to ask whether this incident can be classified as a work-related accident. If it is determined to be a work-related accident, what is the procedure for addressing it from the time the incident occurs? What is the specific process and level of compensation?
Response
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In the above situation, can this incident be classified as a work-related accident?
According to Article 3.8 of the 2015 Law on Occupational Safety and Hygiene (“OSH Law”), a work-related accident is defined as “an accident causing injury to any part or function of the body or leading to death of an employee, occurring during work and in connection with the performance of job duties.”
The 2019 Labor Code and the OSH Law do not explicitly state whether "during work and in connection with the performance of job duties" includes commuting from the workplace to the residence.
However, according to Article 45 of the OSH Law, an employee may be eligible for work-related accident benefits if the accident occurs on the route from the workplace to the residence within a reasonable time frame and along a reasonable route. The law does not clearly define what constitutes “reasonable” time and route, but according to SB Law’s interpretation:
- A reasonable time frame is the typical time required to travel from the residence to the workplace;
- A reasonable route is one that is not excessively deviated from the normal route from the residence to the workplace.
Therefore, if the company can verify the route from the company to the employee’s temporary residence, and the accident occurs within a reasonable time frame and along a reasonable route due to another party's fault or with no identified at-fault party, the employee may be eligible for work-related accident benefits.
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What is the procedure the company must follow from the time of the incident, and what are the specific process and compensation levels?
According to the Law on Occupational Safety and Hygiene (OSH Law) and Decree 39/2016/ND-CP, the company must follow these steps:
Step 1: Upon learning of the work-related accident, the company must immediately establish a Workplace Accident Investigation Team. The team includes a representative authorized in writing by the company as Team Leader and members such as representatives of the grassroots trade union or worker representative group (if no union is in place), workplace safety officers, medical staff, and other relevant personnel.
Step 2: Conduct the accident investigation, including:
- Collecting evidence, records, and relevant documents related to the accident.
- Taking statements from the victim, witnesses, or others involved in the accident.
- Requesting technical or forensic evaluations if necessary.
- Analyzing and concluding on the accident’s progression, causes, responsibility of any at-fault party, measures for prevention, and corrective actions.
- Preparing the Workplace Accident Investigation Report.
- Holding a meeting to announce the findings of the investigation and preparing minutes for this meeting.
- Within 3 working days after the meeting, the Investigation Team must send the report and meeting minutes to the injured employee or their family, the Department of Labor, War Invalids and Social Affairs (DOLISA) where the company’s main office is located, and DOLISA of the location where the accident occurred.
Note: For traffic accidents occurring during travel between work and home, the investigation report can rely on one of the following documents:
Traffic accident report from the traffic police;
Confirmation document from the commune-level police where the accident occurred;
Confirmation document from the local government where the accident occurred.
Step 3: Notify all employees of the accident details and investigation findings.
Step 4: Complete and store the accident investigation records, which include:
- Scene examination report (if available);
- Scene map;
- Photos of the scene and the victim;
- Medical examination report;
- Technical or forensic assessment report (if available);
- Statements from the victim and other witnesses;
- Accident Investigation Report;
- Minutes of the meeting announcing the investigation report;
- Medical certification or hospital discharge papers (if available).
Step 5: Cover costs related to the accident investigation.
Step 6: Implement corrective actions and address the consequences of the work-related accident; conduct a review for lessons learned; implement and report on the recommendations provided in the Workplace Accident Investigation Report; handle, within the scope of authority, any parties responsible for the accident (if applicable). This includes tasks such as providing allowances to the injured employee, arranging for medical assessments to determine the extent of the employee's work capacity loss, facilitating treatment, rehabilitation, and functional recovery as required by law, assigning suitable work based on the conclusions of the Medical Assessment Council if the employee continues to work after treatment and rehabilitation, processing the employee’s entitlement to work accident benefits from the Work Accident Insurance Fund, and paying the full salary to the employee who needs to take time off for treatment and functional recovery due to the work accident or occupational disease.
Regarding compensation levels, under Clause 2, Article 39 of the OSH Law, the Company is required to compensate the employee with 40% of the following amounts:
- 1.5 months of salary if the loss of work capacity is between 5% and 10%, with an additional 0.4 months of salary for each 1% increase in capacity loss from 11% to 80%;
- 30 months of salary if the loss of work capacity is 81% or higher.
