Starting on 1 January 2016, the statutory normal working hours in Taiwan has been reduced from 84 hours every two weeks to 40 hours every week. In conjunction with this reduction, the Ministry of Labor's Occupational Safety and Health Administration (OSHA) also amended the Reference Guidelines for the Determination of Occupationally Caused Cerebrovascular and Heart Disease (Except Those Caused by External Injuries) (the "Reference Guidelines") on January 5 of this year. The amendments to the Reference Guidelines mainly focus on the definition of "long-term excess burden of work" that is deemed to be one of the causes of an occupational disease. The following is a summary and explanation of the major points of the amendments:
I. The number of overtime hours in one (1) month prior to the onset of the disease to the day of onset has been increased from 92 hours to 100 hours (i.e. the burden of work from working for more than 100 hours of overtime will be considered highly related to the disease).
II. The average number of overtime hours worked per month between 2 and 6 months prior to the onset of the disease has been increased from 72 hours to 80 hours (i.e. the burden of work from working an average of more than 80 hours of overtime per month will be considered highly related to the disease).
III. The average number of overtime hours worked per month between 1 and 6 months prior to the onset of the disease has been increased from 37 hours to 45 hours (i.e. the more hours worked per month on average, the more the amount of overtime will be considered related to the disease; the assessment will also take into account the details of each individual case).
From the above, it can be seen that both the number of overtime hours worked and the average number of overtime hours worked per month that are deemed to lead to/cause an occupational disease were increased by 8 hours. This rationale for this is that the total number of hours needed for determining that the overwork is the cause of an occupational disease is unchanged. In other words, when the number of statutory normal working hours was reduced by 8 hours over each 4-week span, the OSHA increased the number of overtime hours needed to determine overwork to maintain the same number of hours medically considered to constitute overwork.
We should note here that the Reference Guidelines have been adopted by court precedents for establishing causation between an employee's death and his/her overwork. This is evident in civil judgment Lao-Shang-Zi No. 14 of 2015 issued by the High Court's Taichung Branch, which states: "Chu had worked regular night shifts for 6 months prior to 28 August 2012, depriving him of normal sleeping time. The actual number of hours worked was over 10 hours per day, resulting in 72 to 84 hours of overtime worked per month on average. This is evidenced by Chu's attendance record.... The number of overtime hours worked by Chu reached the threshold for determining long-term excess burden of work set out by 22.214.171.124 and 126.96.36.199 of the Reference Guidelines for the Determination of Occupationally Caused Cerebrovascular and Heart Disease (Except Those Caused by External Injuries). Therefore, his death has a considerable causative relationship with his work. It is thus a disease caused by Chu's exercise of his occupational duties. Therefore, the appellant's claim that Chu's death was due to an occupational disease brought on by overwork is supported by the evidence. "
Taiwan's reduction of statutory normal working hours has changed the standards for determining long-term excess burden of work. However, the total number of hours needed for the determination of overwork that causes an occupational disease remains unchanged. In addition, court precedents in Taiwan show that, when an employee works overtime, the employer not only has to provide overtime pay, but also has to assume the increased risk that an occupational disease may be caused by the weakening of the worker's immune system due to overwork. The employer may also be liable for damages as a result of the employee suffering from an occupational disease. Therefore, when employers request their employees to work overtime, they should consider the physical well-being of their employees and carefully weigh the necessity of working overtime. By doing so, the employer and the employee will both be benefited.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.