Can Contraction of the COVID-19 be Considered as an Occupational Accident?

The COVID – 19 outbreak has brought on the question whether the contraction of the disease by an employee may be classified as an occupational accident. We will evaluate this issue in light of the decision of the High Court of Appeals, rendered last years, regarding an individual who contracted the H1N1.

In order to provide a wholesome insight we will also briefly asses occupational accidents and the liability to compensate for damages resulting of such.

What is an occupational accident? Which incidents are considered as occupational accidents?

An occupational accident is defined as an incidant that occurs at a time the employee is engaged in the business of the employer which causes physical or mental harm to the employee. It is not required for the employee to be actively working at the time the incident occurs. An incident shall be classified as an occupational accident if it occurs:
· at a time the employee is engaged in work at a location other than the workplace; or
· in the workplace at working hours or rest breaks, even if the employee is not engaged in work.

In other words an incident which occurs during:
· customer visits, industry meetings, court sessions, plane travel, as long as it is related to the performance of work; or,
· the employee is resting, socialising with colleges, working out or making use of break times, as long as it is in the workplace;
it shall be classified as an occupational accident.

Assessment in terms of COVID-19 (Coronavirus)

A decision of the High Court of Appeals, rendered the previous year, has ruled that the contraction of an infectious disease during the performance of work shall be classified as an occupational accident.

The respective decision ruled on a case in which an employee, who travelled to Ukraine as a truck driver, contracted the H1N1 virus. Although the employee was treated he could not be succumbed to the illness and died. The High Court of Appeals took into account that the virus:
· had an incubation period of 1 – 4 days; an
· was within the route of the employee during the time of his stay at the country;
thereby concluding that the virus had been contracted during the performance of work. Accordingly, the incident was rules as an occupational accident.

The main and most important issue here is that the court accepted that the employee was infected with the H1N1 virus while he was engaged in work for the employer. In the context of this ruling, in order for the contraction of COVID-19 to be classified as an occupational accident it will be necessary to prove that the employee has contracted the virus while engaged in activities within the scope of his / her employment; or, alternatively, contracted the virus at the workplace.
 

Is it possible to Determine whether COVID-19 was contracted during the performance of work?

The answer to the question has great importance for the employer, because the liability of the employer will depend on whether the virus was contracted during the performance of the work or at the workplace. In consideration of the incubation period of the disease, it is not possible to give a clear answer to this question. Each incident will be evaluated by the courts according to their specific conditions. During the evaluation, issues such as whether others in the household or social circles of the employee contracted the disease before him / her, whether or not a part or majority of the co-workers became ill on similar dates are likely to be investigated.

Although the relevant legislation and precedent does not provide definite answers at this point, as the elements indicating to a connection between the illness and the work (or the workplace) increase, so will the possibility of the employers liability. For example, the occurrence of the disease on an employee who has just returned from a long business trip or the contraction of the disease among co-worker, simultaneously or consecutively, creates a relatively strong connection between the disease and the workplace. Employers who do not want to encounter a negative circumstances should evaluate all COVID-19 precautions within the framework of occupational health and safety and act by placing priority on health concerns.
 

Compensation Liability Rising from an Occupational Accident

It is important to note that even if all precautions with respect to the performance of work are implemented by the employer, it will not be possible for the employer to absolve itself of all liability. According to the Assembly of Civil Chambers of the High Court of Appeals, even in cases where the incident is inevitable, the employer will be responsible for 60 per cent of the damage incurred by the employee. As an example, precedent sets out that the employer shall be liable for 60 per cent of the damages with respect to an employee who has died from a heart attack at work, at a time he was not exerting any effort. The same may be applicable to COVID - 19 cases, in that even if all measures are taken, the employer will be deemed liable for the 60 per cent of the damages. In contrast, the liability of the employer who does not take relevant measures will increase towards 100 per cent.