Fall ‘commuting’ to home office an occupational accident in Germany
03.03.22
15’
The German Federal Social Court has ruled that an employee who slipped and fell on his way from bed to his home office was protected by statutory accident insurance. Other countries treat home office accidents differently.
During the COVID-19 pandemic, working from home has become well-established. Until recently, however, it was largely unclear to what extent employees working from home were protected by German statutory accident insurance. The German Federal Social Court (Bundessozialgericht) has now passed a widely publicised decision on this issue.
In its ruling of 8 December 2021 (reference B 2 U 4/21), the Federal Social Court decided that an employee who slipped and fell in the morning on his way from bed to his home office was protected by statutory accident insurance.
The facts of the case
The plaintiff was employed as area sales manager in the field. On the morning of 17 September 2018, he was on his way from his bedroom to his home office one floor below. He usually started working there early in the morning without having breakfast. While climbing the spiral staircase connecting both rooms, he fell and fractured a thoracic vertebra. The defendant employers’ liability insurance association refused benefits on the grounds of the accident.
The German Federal Social Court decision
While the first instance Social Court considered the first morning commute from bed to the home office to be an insured business ‘journey’, the second instance Regional Social Court ruled it was an uninsured preparatory action. The Federal Social Court as the highest instance has now confirmed the Social Court’s decision.
According to the Federal Social Court decision, for which only the press release is available at the time of writing, the plaintiff employee suffered an occupational accident when he fell on the way to his home office in the morning. In his case, the Court ruled, taking the stairs to the home office was solely for the purpose of starting work and was therefore insured as an activity in the interest of the employer. The objective circumstances had shown that the claimant intended to begin work. His going downstairs was therefore directly in the interests of the employer. Moreover, the accident occurred at the time when the employee usually started work.
Conclusion
The decision is particularly remarkable because the Federal Social Court made the decision in this case on the basis of the legal situation that applied previously. Following an amendment to the law of 14 June 2021, the Seventh Book of the German Social Security Code now expressly stipulates that there is insurance cover for accidents in the home office to the same extent as when working at the company’s premises. The Federal Social Court has therefore now corrected its previous case law and aligned it with current regulation of accident insurance protection in the home office from 2021. The decision promises better accident protection for employees working from home and is therefore to be welcomed, especially in the context of the still-ongoing pandemic.
Bulgarian COVID-19 labour legislation did not affect the work accident rules in the Labour Code and Social Security Code. Employers’ liability for workplace accidents is objective: the employer owes compensation regardless of whether it, or another employee, is at fault in the accident. The employer is also responsible when a labour accident is caused by force majeure or during the performance of the assigned work or any work carried out without orders, but in the employer’s interests.
In social security law, labour accidents and occupational disease are social risks, giving rise to insurance rights. Risks identified as professional and affecting individuals performing ‘dependent’ work have more favourable insurance consequences: for example, the right to claim a cash benefit from the social security authorities for temporary incapacity for work due to a labour accident (90% of the social security income), or general sickness (80%).
These principles were valid before the pandemic and remain valid today. The difference is in the frequency with which remote work is used and the associated risks. The trend towards an increase in remote work poses specific new challenges, including OHS ones:
ensuring health and safety at work in an environment to which the employer generally does not have access (usually the employee’s home);
the employer’s liability for a labour accident occurring at the employee’s home.
These issues are yet to be considered and dealt with by courts and administrative bodies in Bulgaria.
In Chile, employees working from home have professional accident and/or illness coverage from the Mutual Aid Fund. However, according to the Social Security Superintendence criteria, for an accident to qualify as a labour accident, it is necessary to establish a cause and effect relationship between the work of the affected employee and the injury. This will be decided in each case by the Social Security Superintendence taking into account all the facts.
Nevertheless, as in Germany, a Chilean Labour Court has recently ruled that an employee who fell on the stairs on her way from her room to her home office desk was protected by professional accident and/or illness insurance. This was because the accident occurred when she was going downstairs carrying her laptop towards her desk to connect to a work meeting. Therefore, there was a cause-effect relationship between her work and the injury.
Under Colombian law, a work-related accident is defined as:
a sudden event;
that occurs due to, or during work;
that has a consequence for the employee, causing organic or functional damage, disturbance, disability or death.
Even if the employee is working virtually, in the event of a work- related accident s/he will have the right to be aided through the employment-related Risks Administrator (ARL). The accident will be considered a work-related accident if it occurs during the execution of orders from the employer, or during the provision of services under the authority of the employer.
To establish if there is a work-related accident, aspects such as the services rendered, the time and place of the accident must be considered. To make this determination, the event must be analysed in the light of the legal definition above.
In Cyprus, according to the Labour Inspection Authorities, the provisions of Occupational Safety and Health Legislation also apply to teleworking. Employers must provide employees with appropriate equipment, training and information in order to keep their working environment safe and risk-free even if this is their home office.
In the event of an accident that occurs in the home of the employee who is teleworking or on the employee’s usual route to his or her home office, this will be considered to occur in the workplace and it should be notified to the authorities depending on the seriousness of the accident. Please note that Cyprus law obliges employers to have employer’s liability insurance for accidents during employment and this law does not exclude homeworking.
We are not aware of any new case law of the higher courts regarding accidents at work suffered when working remotely from home, even though there is no legislation covering this specific area and many questions arise in connection with it.
However, the German case described in this article also attracted a great deal of attention in the Czech Republic. It has been cited in many (even non-professional) journals. However, this does not mean that the same approach would be applied in the Czech Republic. Generally, an accident on the way to work is not considered to be an accident at work, while an accident on a business trip is considered to be an accident at work.
Danish law on occupational injury insurance applies to employees working from home provided that the injury occurs while the employee is performing work in the interests of the employer (not personal errands in the home). Further, this law does not apply, as a main rule, to the commute from the employee’s home to the workplace. Therefore, the starting point under Danish law would most likely be that the injury described in the article would not be covered by occupational injury insurance.
The situation in Finland regarding the protection of employees working from home is fairly similar to that in Germany. The Finnish Insurance Court ruled that an employee who stubbed a toe on the foot of a cupboard while retrieving a work phone in the home office was entitled to the statutory compensation for the accident at work. The Court held that the accident had occurred in the course of work within the meaning of the Workers’ Compensation Act. Additionally, there is a legislative motion in preparation to extend occupational accident protection to state employees who are working remotely.
In France, an accident that occurs at home during working time would be presumed to be a work-related accident. Unless this presumption is challenged, the accident would therefore be dealt with according to the specific legislation pertaining to work-related accidents. It will sometimes be difficult to determine when the employee actually starts and stops working, especially for white-collars who are autonomous in their work and whose working time is not closely monitored.
A teleworking employment regime has been introduced in Greece (with new Labour Law 4808/2021), independent of the COVID-19 pandemic that initially imposed remote working. Under it, the employer must inform the teleworker of the organisation’s policy on health and safety at work, including the specifications for the teleworking area, rules for the use of visual display screens, breaks, the organisational and technical means for work and any other necessary information.
The teleworker must comply with the legislation on health and safety at work and not to exceed his or her working hours. The legislation stipulates that ‘When a teleworker provides teleworking services, it shall be presumed that the teleworking site meets the above requirements, and that the teleworker complies with the health and safety rules.’ This presumption means that in the event of an accident, on the one hand, the teleworker would have to prove some irregularity on the employer’s part with regard to its duty of care and on the other hand, the employer would have to prove that the teleworker did not comply with a safety rule and that therefore any accident at work was due to the individual worker. However, case law has not yet ruled on these issues.
In Hungary, a similar accident could also qualify as a work accident or an occupational accident as it can be argued that the accident occurred in the course of or in connection with the performance of the employee’s work. This of course would need to assessed on a case-by-case basis. However, there is no such recent case law available in Hungary which would address or provide guidelines for the situation of accidents during remote working.
In Italy, statutory accident insurance for ‘smart’ workers (governed by Art. 23 of Law no 81/2017) expressly provides that smart workers are entitled to protection against occupational accidents related to work performed outside their employer’s premises. The insurance protection also operates with reference to the journey to and from home to the place where the work activity is carried out, when this is based on work needs or the employee’s need to reconcile life and work.
The public institute for the statutory accident insurance has also specified that smart workers are insured for risks related to preparatory and/or ancillary activities, as long as they are instrumental in the performance of the work activity (Circular no. 48/2017).
On the other hand, accidents caused by voluntary and abnormal behavior of the employee are normally excluded, as is the case for accidents occurring in the workplace.
The public institute for statutory accident insurance has recently accepted a request submitted by a smart worker who fell in her home during a telephone call with a colleague. The institute ruled the event was an occupational accident and recognised the employee’s right to receive compensation.
In Kazakhstan, employers must ensure occupational health and safety while employees are working remotely, including developing internal occupational health and safety rules and making remote employees familiar with them, and insuring employees against accidents in the course of performing their official work duties.
The rules must include general occupational health and safety requirements and requirement before work starts, during work, in emergencies and upon completion of work and any adverse or hazardous or harmful places for remote employee.
The qualifying features of a work-related accident are working hours (including before and after working hours when preparing and cleaning up the workplace) and workplace. For remote work, the workplace is arranged by the employee himself/herself; however, s/he must comply with the employer’s internal rules. A workplace is a place of permanent or temporary stay of an employee when performing labour duties in the course of labour activities. It is assumed that there should be a specific place where an employee performs remote work, which place should be the employee’s workplace. Working hours are legally defined and include time performing labour duties and any other periods of time that are held legally or by CBA or employer acts to be working hours.
If an accident occurs in this workplace during working hours, it will be an insurance event. Performing household tasks outside the remote workplace means the accident will not be recognised as a work-related accident. In any event, a thorough investigation must be conducted for each accident.
In the Netherlands there was recently a discussion between the employee and employer whether the place where the work was usually or most recently performed changed as a result of working from home. According to the Dutch court, the issue of the usual place of work is not only about the permanence of the work in a certain place, but also about the motive for choosing the place of work.
The employee’s place of work does not change simply because the employee is working from home during the COVIR-19 crisis. The starting point remains what was agreed in the employment contract. However, this may be different if the employer had made structural changes to the home working policy, or if an employee continues to work from home on a structural basis after the COVID-19 crisis.
In Poland, general rules regarding occupational accidents apply to accidents during home office work. So far, no specific laws regarding these accidents have been introduced, meaning every case must be verified individually. The fact that accidents during home office work occur and are recognised as such has been confirmed by the Polish National Labour Inspectorate. According to its data, in the first half of 2021, the Inspectorate registered 15 cases of these accidents (11 of them were fatal). Moreover, it follows from the Polish Supreme Court jurisprudence, that occupational accidents may happen during breaks in work constituting working time, so their connection with work does not have to be very close.
In Slovakia, it would very much depend on whether the accident is expressly related to employee´s job and can therefore be genuinely characterised as an occupational accident. The Slovak Labour Code specifically states that an accident sustained by an employee on the way to and from work cannot be considered as an occupational accident. In addition, case law in this regard is not decisive, as issues around home office work are relatively new.
Moreover, currently based on Covid-related regulations, the Labour Inspectorate issued a guideline (which is not legally binding) stating that ‘the employer is not responsible for the condition of the employee’s workplace when ordering or allowing work in the form of a home office.’ This should also be taken into consideration when assessing work accidents in these situations.
According to Swedish case law, an employee can receive compensation from statutory insurance, but certain caution must be exercised in the assessment of accidents at home which are not directly caused by work and simply based on the dangers of daily life. Falling down the stairs in your home is, as a main rule, considered to be an accident that is based on the dangers of daily life. However, if it can be shown that an employee intended to work, s/he should be able to receive compensation. However, as mentioned, courts will be cautious when making their assessments.
Insights
Fall ‘commuting’ to home office an occupational accident in Germany
During the COVID-19 pandemic, working from home has become well-established. Until recently, however, it was largely unclear to what extent employees working from home were protected by German statutory accident insurance. The German Federal Social Court (Bundessozialgericht) has now passed a widely publicised decision on this issue.
In its ruling of 8 December 2021 (reference B 2 U 4/21), the Federal Social Court decided that an employee who slipped and fell in the morning on his way from bed to his home office was protected by statutory accident insurance.
The facts of the case
The plaintiff was employed as area sales manager in the field. On the morning of 17 September 2018, he was on his way from his bedroom to his home office one floor below. He usually started working there early in the morning without having breakfast. While climbing the spiral staircase connecting both rooms, he fell and fractured a thoracic vertebra. The defendant employers’ liability insurance association refused benefits on the grounds of the accident.
The German Federal Social Court decision
While the first instance Social Court considered the first morning commute from bed to the home office to be an insured business ‘journey’, the second instance Regional Social Court ruled it was an uninsured preparatory action. The Federal Social Court as the highest instance has now confirmed the Social Court’s decision.
According to the Federal Social Court decision, for which only the press release is available at the time of writing, the plaintiff employee suffered an occupational accident when he fell on the way to his home office in the morning. In his case, the Court ruled, taking the stairs to the home office was solely for the purpose of starting work and was therefore insured as an activity in the interest of the employer. The objective circumstances had shown that the claimant intended to begin work. His going downstairs was therefore directly in the interests of the employer. Moreover, the accident occurred at the time when the employee usually started work.
Conclusion
The decision is particularly remarkable because the Federal Social Court made the decision in this case on the basis of the legal situation that applied previously. Following an amendment to the law of 14 June 2021, the Seventh Book of the German Social Security Code now expressly stipulates that there is insurance cover for accidents in the home office to the same extent as when working at the company’s premises. The Federal Social Court has therefore now corrected its previous case law and aligned it with current regulation of accident insurance protection in the home office from 2021. The decision promises better accident protection for employees working from home and is therefore to be welcomed, especially in the context of the still-ongoing pandemic.
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