Over the last few years and, in particular, because of the declaration of state of alarm due to the socio-health crisis caused by Covid-19, many companies have opted to adopt some policies in favour of their employees in order to allow them certain flexibility within the scope of rendering their services, such as working remotely and/or a working from home system.
Although this system has certainly become one of the key factors within a corporate scope in order to attract and retain talent in organisations, the current regulatory working from home structure, provided in Act 10 of 9 July 2021 on working remotely, still contains numerous interpretive loopholes and doubts regarding its practical application and, more particularly, related to the implications that the development of rendering services by means of the working from home system and/or the remote working system could imply for companies.
In particular, what would happen if a worker has an accident while working from home? Would it be considered an occupational accident? What risks would I run as an employer?
As a preliminary approach, it should be pointed out that the regulations governing working from home state nothing about this issue and do not include any specific feature other than the provisions in the common regulations (Article 156 of the General Social Security Act – hereinafter referred to by its initials in Spanish “LGSS”).
Pursuant to the provisions in Article 156.1 of the LGSS, an occupational accident is deemed to mean “any bodily injuries caused to workers during or resulting from the work performed for their employer”. Nevertheless, such article also refers to the presumption of occupational accident, regarding injuries caused to workers “during working hours and in the workplace” (Article 156.3 of the LGSS); however cases are excluded that are caused by force majeure not due to the work or those resulting from the worker’s misconduct or negligence.
In this respect, the Labour Court Number 1 of Caceres ruled on this issue in its recent judgement of 26/10/2022, deciding that the injury caused to a worker in her home while she was rendering her services there was considered an occupational accident.
- In the case analysed here, the plaintiff was injured when she was coming out of her bathroom at her home while she was working according to the working from home system as a call centre operator with working hours from 8 am to 2 pm. She performed such duties from a seated position in front of her computer screen.
- The incident took place around 1.45 pm when the plaintiff was coming out of her bathroom to return to her desk, when she tripped over in the corridor and fell down, causing an injury to her elbow and right rib cage. As a result of the injury, the plaintiff was declared in a situation of temporary disability due to a non-occupational accident.
- Since she did not agree with such categorisation, the plaintiff filed a claim to determine a contingency so that the court would rule that the plaintiff’s sick leave process was caused by an occupational accident.
Legal grounds and conclusions:
- After making a brief reference to the legal definition of occupational accident and the case law that interprets it, the judgement analysed here sustained that rendering services remotely and/or by the working from home system means that some aspects that have been consolidated by law and case law must be reconsidered or dealt with in greater depth, in particular considering that the incident occurred while the plaintiff was “continuing to fulfil her working hours, when she came out of her bathroom at her home to resume her work”.
- Therefore, the judgement concluded that, even though the worker was not seated in front of her computer at home when the injury occurred, in the case in question a clear interruption in the nexus cannot be observed that would prevent the accident from being categorised as “occupational” because “a necessary visit to the bathroom for a physiological need is deemed included in the employee’s working hours” cannot eliminate the presumption of “occupational” referred to in Article 156.3 of the LGSS related to injuries caused “during working hours and in the workplace”.
- However, the judgement also sustained that the accident the plaintiff suffered would not be able to be considered of an occupational nature if there had been a clear interruption of such nexus, as could occur, as an example, in situations when the worker “was in the kitchen of her home during working hours and accidentally cut herself with a knife”.
- Similarly, applying the solution adopted in another previous judgement ruled by the Labour Division of the High Court of Justice of Galicia on a similar case was ruled out, by virtue of which the common aetiology was acknowledged of the injury caused to a worker’s shoulder when picking up a computer screen because, in that case, it had not been proven that such incident took place during working hours and in the workplace.
So is any accident that my employees could suffer within the scope of working from home considered an occupational accident?
No, only accidents suffered by employees while working from home and during their working hours can be considered as such, providing such workers are performing the duties of their jobs and there is no clear interruption in the nexus between the injury caused and rendering their services.
In any case, the circumstances arising in each specific case must be analysed.
Which risks could I run as an employer if an employee working from home has an occupational accident?
Occupational accidents can lead to serious consequences for employers from an administrative, civil and criminal standpoint.
For example, if it is proven that the accident was caused due to failing to fulfil safety measures, an infringement action could be filed against the infringing company by the Labour Inspection Unit.
Similarly, in such situation, the company could be held liable for paying a possible surcharge over the social security benefits that the worker could be paid due to the accident and possibly the relevant compensation for damages.
Therefore, when the employee working from home disagrees with the aetiology of the accident, it is always advisable for companies to seek advice in order to decide on its possible categorisation as “non-occupational” in this way contributing to avoiding liability being claimed against the company within this scope. In the same way, in order to avoid this, it is always advisable to ensure there is a suitable prevention of occupational hazards policy applicable to the scope of rendering services remotely and/or by the working from home system.
Please do not hesitate to contact us if you have employees working from home that have had an accident there and you need advice on how structure your defence if a possible claim is filed. You will probably be surprised to know that not all the solutions adopted by Spanish courts are applicable in the same way to all cases; hence the special features of each case must be studied in order to find the most appropriate solution.