New Occupational Disease Rules and Employer-held Data

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China has revised a regulation to protect patients suffering from work-related diseases by requiring employers to submit information needed for diagnosing workers.

The Legislative Affairs Office of the State Council published the draft regulation on Wednesday concerning work-related disease patient diagnosis, which is a revised version of the current one, inviting public submission. (China Daily)

Whether these draft rules are effective will depend (surprise, surprise) on enforcement, but even so, their passage says a lot about problems with the current system and the government’s willingness to attempt a correction.

What’s the problem here? Workers contracting work-related illnesses and being unable to obtain compensation because the data necessary to prove their cases is held by the employer. When such data is requested, employers often flat-out refuse or even falsify data to protect themselves.

This is one of the drawbacks of jurisdictions, like China, that do not have a robust system of discovery, which refers to:

. . . the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for admissions and depositions.

There are serious drawbacks to the Common Law system of discovery, including the huge cost and expenditure of time. Many critics of the American legal system in particular point to discovery as one of the most significant problems.

However, keep in mind that discovery is good at forcing parties to disclose relevant information. Such documentation is crucial in Common Law litigation, but even more so in Civil Law jurisdictions (like China) where witness testimony is usually not a significant part of judicial proceedings.

China courts and arbitration bodies rely heavily on documentary evidence, and therefore obtaining such evidence is extremely important. It is not surprising, therefore, to find that lack of evidence is one of the biggest barriers to successful litigation in China, including general commercial, intellectual property, tort, or labor disputes.

Parties are simply not used to turning over documentation, and judicial orders to do so have only become common during the past decade. My personal feeling from practicing law here is that hiding documents is a common tactic amongst litigants.

So that’s the general context. The specific type of case dealt with by the draft rules is work-related illness, with the evidence problem handled in the following manner:

According to a statement issued along with the regulation, in determining whether a patient suffers from a work-related disease, information about work-place hazards is needed. The revision has been made to ensure a diagnosis can be performed, even if employers do not provide information or provide falsified information.

According to the draft, if employers do not provide information, or patients question the authenticity of such information, patients could apply for arbitration of labor disputes and arbitration authorities should handle the case within 30 days.

Further, employers will be held liable if they fail to provide relevant information within the time period designated by the arbitration authority.

The first hurdle is such cases in diagnosis. You can imagine, for example, a job that requires improper exposure to toxic chemicals. The worker comes down with a disease and consults a physician, who is stymied because he/she does not have a list of possible toxic substances to which the patient was exposed.

Therefore the draft rules, if they are effective, are not merely important for dispute resolution, but also for proper patient care in the first place. It’s a very positive step in the right direction. I wonder, however, what sort of authority will be given to labor arbitration bodies to go against recalcitrant employers who hide or falsify documents.

Moreover, local labor arbitration bodies are not immune to pressure from local government and large businesses; local protectionism will be a problem with implementation.