Getting poisoned in the employer’s cafeteria shall be considered as a work-related injury or not?

Many companies set cafeterias for employees. If an employee gets poisoned after dining in the cafeteria, such illness or death shall be considered as a work-related injury or not?

According to the “Reply of the Labor Insurance Department of the China Federation of Trade Unions on Labor Insurance Issues” (implemented on April 1, 1964), “If workers or employees have problems in the following situations with reliable proof, they can be treated according to work-related benefits: getting poisoned after dining in the unit’s cafeteria, which caused illness or death due to food poisoning, and the worker or employee shall not be liable.” Some provinces and cities, such as Guangdong, Yunnan, and Jilin have stipulated in local regulations that an employee gets poisoned after dining in the employer’s cafeteria, and is sent to the hospital for medical treatment, such circumstance shall be deemed as a work-related injury. (“Guangdong Province Work Injury Insurance Regulations”, “Yunnan Province Implementation Measures of the Work Injury Insurance Regulations”, and “Jilin Province Implementation Measures of the Work Injury Insurance Regulations”).

In view of the above regulations, normally an employee gets poisoned after dining in the employer’s cafeteria would be considered as a work-related injury.

There are two main exceptional circumstances. Firstly, there is evidence to prove the employee’s poisoning was caused by other reasons, which means there is no causal relationship between the employee’s poisoned consequence and the employer’s cafeteria. For example, in the case (2019) Yun Xing Shen No. 142, the court found that the employee ate the mushrooms picked by another employee and got poisoned, based on which the court rejected the employee’s claim. Secondly, if the cafeteria is contracted and operated by a third party, some courts also reject the employee’s claim. In the case (2017) Yun 03 Xing Zhong No.72, although the employee got poisoned after dining in the cafeteria arranged by the employer, the court held that such cafeteria did not have the characteristics of a “unit’s cafeteria”. A “unit’s cafeteria” is a non-profit place where the unit provides meals for its employees or service recipients. The unit has the responsibilities to manage and control the issues related to the cafeteria, such as the staffs, staffs’ salary, expense, food and so on. Therefore, the unit shall have a comprehensive management system.

In summary, from the perspective of employers, it is recommended to take measures as follows.

Firstly, in order to keep evidence, no matter the cafeteria is operated by the employer itself or outsourced to a third party, the employer shall strictly supervise the food safety, and keep the sample of the food in accordance with the laws and regulations.

Secondly, if the cafeteria is outsourced, the employer could find evidence to prove the causal relationship as mentioned, by which the employer may seek the support of the court.

Thirdly, if only a few employees get poisoned, it is recommended to find evidence from two aspects from the perspective of causal relationship. To check whether the relevant employees have eaten other foods before or after meals, and if possible, the relevant food samples should be kept. If possible, the employer could invite other employees who have eaten same or similar foods during the same period to conduct a health inspection, and retain the result.