COVID as an occupational disease
- Veronika Odrobinová
In the recent times, responsibility of the employer in case an employee contracts the COVID-19 disease at work – or at least he supposes he did – is beginning to appear increasingly more frequently in practice. How is it with employer responsibility in this situation and when will it actually apply?
It is not an occupational injury
First it needs to be said clearly that the COVID 19 will not be assessed as an occupational injury, because it is not a short-term, sudden and violent impact of external phenomena when performing work tasks or directly relating to them. An occupational injury may thus be for example a stroke or heart-attack, but not the COVID 19 disease.
When is it an occupational disease
The COVID 19 disease can be an occupational disease, though, if (i) before its detection the employee last worked at the employer’s workplace under conditions, under which an occupational disease occurs, and (ii) at the same time the disease is mentioned in government regulation no. 290/1995 Coll., which stipulates the list of occupational diseases.
The second condition is quite clearly met, because transmissible diseases are listed in this government regulation and COVID 19 can, without any further discussion, be considered a transmissible disease.
In order to fulfil the first conditions, it is necessary to specify, which work poses the risk of infection (the so-called hygiene condition). According to the information from the Ministry of Healthcare, this should be work with higher probability of transmission of infection when performing work compared to the usual contact with other persons. This condition is certainly fulfilled in the case of medical workers or employees of social services, firefighters or policemen. According to the author’s opinion, such higher risk exists in other profession, too, where more frequent interpersonal contact is necessary – that is for example in the case of teachers during face-to-face instruction, shop assistants, employees sharing common open space offices, who cannot work from home. Fulfilment of this condition is currently addressed by a hygiene inquiry – but there are no guidelines for interpretation available at present. It is also necessary to take into account the fact that during the limiting government measures, the “usual contact with other persons” was significantly reduced.
From the clinical perspective, there needs to be a symptomatic course of the COVID 19 disease with the respective laboratory findings – occupational disease cannot be acknowledged without symptoms of infection (the so-called clinical condition).
How is an occupational disease detected
The process of assessment is usually initiated by the attending physician, who will request assessment of the illness as occupational disease, if he detects circumstances that indicate an occupational disease. The employer or the employee (which will be relatively frequent) may also request this assessment.
Occupational disease is assessed and recognised exclusively by the locally competent occupational health service provider in the field of occupational medicine with a special permission from the Ministry of Healthcare – here the free choice of physician is limited. The rules are stipulated by decree no. 104/2012 Coll., on assessment of occupational diseases.
At the same time, an inquiry of the hygiene station regarding the above-mentioned hygiene condition needs to take place.
What is an employee entitled to?
The most usual right of the employee will be the right to compensation of lost earnings during the time of his incapacity to work. During the time of isolation, the difference between the reimbursement of wage and his average earnings will be paid to him in case of a temporary incapacity to work. Entitlement to reimbursement of reasonably expended treatment costs may also arise (for example vitamins etc.) or to reimbursement of material compensation, which includes for example the cost of help in the household, if the illness prevents the employee from performing activities he would otherwise perform himself.
In case of more severe course of the disease, a right to pain and suffering compensation or compensation of loss of work or other opportunities cannot be excluded, if the disease leads to lasting consequences. In case of lasting consequences, a right to compensation of earnings even after the incapacity to work has ended may even arise, if, as a result of the disease, the employee can no longer perform the work he or she performed before the disease, or cannot perform it in the original scope.
The good news for the employer is that the above-mentioned entitlement of the employee in proven cases of occupational disease are paid by the insurance company as part of the statutory insurance of the employer; but the situation may be different, if it turns out that the employer did not comply with some obligatory measures. We would like to point out, though, that not complying with measures, which are invalid according to court decisions due to being in conflict with the law, cannot be punished in this way (by the statutory insurance company not granting insurance benefit).
We have no case-law available yet in this area, only opinions of the ministry of healthcare and several professional articles. It is clear, though, that the number of cases using the COVID-19 disease as an occupational disease has been significantly increasing. It will therefore be interesting to watch, how the court decisions will handle this situation. This is without any question the most massive occupational disease in the entire period of validity of the labour code. In case you are currently struggling with ambiguities in this area or you need assistance with anything, please, do not hesitate to turn to us.