Coronavirus infection - work accident or occupational illness?
Pursuant to the Labour Code, employers must compensate their employees for any damage or non-pecuniary harm incurred through an accident at work when performing work-related tasks or in direct connection with it. The same applies to occupational diseases if, before their detection, the employee had been working at the employer under the conditions under which such diseases arise. Under the current extraordinary circumstances, it is often asked whether employees infected by COVID-19 can claim compensation for accidents at work or occupational diseases.
The Labour Code stipulates that “an accident at work shall mean the harm to health or death of an employee if it occurred independently of the employee's will due to the brief, sudden and forceful influence of external effects in the performance of working tasks or in direct connection therewith (…). An accident sustained by an employee due to performance of working tasks shall also be considered an accident at work. An accident sustained by an employee during the trip to work and back is not an accident at work. (…)“.
In our opinion, infections with the COVID-19 virus do not meet the definition of work-related accidents.
Less clear is whether the coronavirus illness may constitute an occupational disease. In our opinion, we cannot currently say with certainty that COVID-19 may be regarded as an occupational disease at least with respect to certain professions. Occupational diseases are specified in an appendix to a government decree and are defined as “diseases resulting from adverse chemical, physical, biological or other harmful effects if these arose under the conditions specified in a list of occupational diseases”. The government decree lists diseases whose origin can be attributed to a particular profession/occupation if the employee worked under the conditions under which the relevant disease may have arisen. COVID-19 is not mentioned in the list, but infectious and parasitic diseases as well diseases of the respiratory tract and lungs are. Simultaneously, the World Health Organisation’s guidelines stipulate, among other things, the following: “acknowledge the right to compensation, therapeutic and medical services where an employee is exposed to COVID-19 at the workplace, which is regarded as work-related exposure to an infection and should thus be treated as an occupational disease.” However, even if the coronavirus disease were acknowledged as an occupational disease, there is still the issue of proving that the disease occurred as a result of work performed for the employer.
The conclusion that the COVID-19 infection is not an accident at work is, in our and professional public’s opinion, relatively unambiguous. Whether it involves an occupational disease will have to be decided by the appropriate bodies or courts, while the outcome may differ for specific professions. It will definitely be more plausible to claim compensation for an occupational disease for those working in the front line in the fight against the pandemic, such as health professionals, firefighters, police officers, and other first responders. If the COVID-19 virus infection is eventually acknowledged as an occupational disease, related damage should be compensated by the employer, using the employer’s statutory liability insurance against damage associated with work-related accidents or diseases (i.e. Kooperativa liability insurance).