[Work Revolution] Injured While Working from Home, but What About Industrial Accident Compensation? Current Labor Laws Provide No Answer

Working Hours and Location Boundaries Are Blurring... Yet the Law Remains Trapped

[Asia Economy Reporter Jang Sehee]"While working from home, I also helped my child with homework from time to time and did company work, but how should I calculate my working hours?" "I injured my foot while working at home; can I apply for industrial accident insurance?", "While working from home, I also helped my child with homework from time to time and did company work, but how should I calculate my working hours?" "I injured my foot while working at home; can I apply for industrial accident insurance?"

The Fourth Industrial Revolution has come closer to us faster due to the novel coronavirus infection (COVID-19). Using ICT, a foundation has been established to work anytime and anywhere without being restricted by time and place. Telecommuting will become widespread, and various work styles that have never existed before will emerge. However, since there are no concrete legal standards for telecommuting systems, confusion arises in many places. Each company is only creating and implementing telecommuting standards temporarily based on labor-management agreements.

During the 19th National Assembly, a 'Smart Work Promotion Bill' was proposed to introduce smart work comprehensively into national society and promote participation, but it was discarded due to the expiration of the term. Without clear legal regulations, issues such as payment for overtime and night work, cost burdens for consumables arising from telecommuting, and recognition of work-related accidents are all expected to lead to labor-management conflicts.

◆Non-face-to-face life and telecommuting becoming common... Legal basis must be specified= Professor Lee Seung-gil of Ajou University Law School advised, "As work styles diversify, we need to consider how to calculate working hours first," and added, "Measures to prevent moral hazard in telecommuting and clarifications on whether work-related accidents are recognized during telecommuting should also be supplemented."

Whether an injury such as tripping over a high threshold while going to the restroom or cutting a hand while using consumables during telecommuting is considered an industrial accident is a legally and practically controversial and contentious issue. Lawyer Kim Sang-gyun, who runs the 'KimKim Lawyer' channel, said, "The Labor Standards Act itself is tailored to traditional work environments," and emphasized, "There is a need to establish a legal basis for flexible work systems and telecommuting."

Furthermore, as telecommuting becomes widespread, conflicts are expected between employer supervision and employee human rights violations. A 27-year-old female employee working at a Seoul commercial bank said, "My team leader sends messages on the company messenger every 30 minutes, making me feel monitored," and added, "The company needs to trust employees for telecommuting to be efficient. It would be good if there were clear legal grounds for telecommuting in the future."

Article 15 of the current Act on the Protection and Use of Location Information prohibits the collection of location information without the consent of the information subject. However, as smart work becomes widespread, there could be debates on whether personal information should be viewed only from the perspective of the Personal Information Protection Act or also from the perspective of labor law. Professor Lee Seung-gil of Ajou University Law School said, "If smart work becomes widespread, we need to examine whether the consent regarding personal information should be viewed only under the Personal Information Protection Act or also be derived from labor law to create a legal basis."

◆Uniform working hours... "White Collar Exemption should be introduced"= The 52-hour workweek system, which was fully implemented in July 2018, remains a challenge to be addressed. Although new industries have emerged and work models have changed, strict labor time regulations remain unchanged. If working hours are uniformly restricted without careful consideration of industry and job characteristics, industrial competitiveness will inevitably weaken. Therefore, voices are emerging to introduce a performance-based compensation system instead of uniform allowances for office workers.

Choo Kwang-ho, Director of the Job Strategy Office at the Korea Economic Research Institute, emphasized, "South Korea should also introduce flexible working hour systems like the white collar exemption," and added, "Although discretionary work is specified in the law, there are ambiguous parts in its application and interpretation, so it needs to be expanded to a broader scope." He stressed that the expansion of discretionary work and relaxation of special extended work application standards must precede as the work environment changes.

During the 20th National Assembly, a white collar exemption bill was proposed to exclude workers within the top 3% of labor income from the 52-hour workweek system, but it was discarded due to the expiration of the term. Even when attempting to supplement laws and systems, it is not uncommon for related legislative amendments to fail to pass the National Assembly.

The white collar exemption system grants discretionary authority over work hours to white-collar workers whose performance is difficult to evaluate by working hours and evaluates and compensates productivity based on performance. Professionals, managers, and office workers who meet certain income criteria are eligible. In the United States, the top 3% of wage earners are exempt from overtime pay and minimum wage. Japan also excludes some professionals earning an annual salary of 10.75 million yen (about 120 million KRW) or more from working hour regulations. Regarding this, Lee Jae-gap, Minister of Employment and Labor, stated, "In Japan, the system was implemented after 20 years of discussion."

Experiencing COVID-19, companies also realize the need for system changes. In a recent survey conducted by Asia Economy targeting 150 domestic companies, 61.3% (92 companies) responded that changes to the 52-hour workweek system are necessary after COVID-19. Regarding the need to reform the personnel system during telecommuting, the largest share, 37.3%, answered "yes." Respondents said that personnel systems need to be reformed in areas such as performance evaluation and job role evaluation.

◆Unemployed lose lifeline... burden of health insurance premiums too= There are calls to reset the health insurance standards, which have relatively higher premium rates compared to employment insurance. This is because even though income decreases due to unemployment, the cost burden increases as one switches from workplace subscribers to regional subscribers. Even if workers intend to return to the company someday, they are converted to regional subscribers upon unemployment.

The current employment insurance system operates by having wage workers and employers each pay 0.8% of the monthly salary as premiums. However, when unemployed, neither party pays premiums. In contrast, health insurance requires a 3.335% contribution from both sides, and even if deferred, payment is mandatory. Lee Sang-hyuk, a labor attorney at the Korean Confederation of Trade Unions, said, "Because health insurance requires mandatory additional payments, it can be more burdensome than employment insurance," and added, "Discussions should begin on ways to reduce the burden compared to other social insurances."

According to a 'Public Perception Survey on Health Insurance Burden' conducted by the Korea Employers Federation on about 1,170 adult men and women on the 7th, 53.3% demanded freezing or lowering next year's health insurance premium rates. However, the government maintains that adjusting premium rates is difficult because each social insurance has different characteristics. A Ministry of Health and Welfare official said, "It is true that health insurance premiums are more burdensome than employment insurance premiums, but many evaluations say the coverage effect is good relative to the burden," and added, "However, from the perspective of youth who do not immediately benefit, there are voices asking for reductions." Accordingly, there are also calls to reorganize the income-based premium charging system into a unified system considering life cycles.