Can teleworkers have an accident at work outside the “workplace”?
We analyse the keys to the ruling of madrid’s high court of justice of november 11, 2022
Since the publication of Law 10/2021, of 9 July, on Telecommuting (“LTD”), it was already foreseen that accidents occurring during telecommuting would bring great conflict to our courts, which would have to establish, among other questions, when we are or are not dealing with an accident at work.
For this reason, and until we have a unanimous pronouncement from our Supreme Court, several Courts and Tribunals have begun to rule on the concept of an accident at work for teleworkers, in a way that is not at all restrictive.
What factors must be present for an event to be considered an accident at work?
The General Law on Social Security (“LGSS”) establishes that an accident at work is any bodily injury that the worker suffers on the occasion of or as a consequence of the work that they perform for an employer.
In other words, for an accident to be considered an accident at work, the following conditions must be met:
1. That the worker suffers a bodily injury, i.e., bodily damage or detriment or a psychological or psychological injury.
2.The accident is caused by or as a consequence of work, i.e. there is a direct causal link between the work and the injury.
Thus, once it has been defined what must be present in order to be considered a true accident at work, it should be pointed out that the legislation also recognises as accidents at work those that occur not only in the place and time of work, but also those that occur when you travel to the place where services are provided, as long as there are no interruptions between the work and the accident. This is known as an accident at work In itinere.
With the extension of the concept of accident at work to accident In itinere, the legislative and judicial intention to interpret the concept of accident at work in a broad manner was already foreseen.
Specifically, some judicial rullings have gone so far as to declare as an accident at work those which occurs when a worker, before leaving his home to go to work, slips and falls in the doorway, or when a worker is run over when during his rest time, he leaves the workplace and goes to his private car to change his parking space.
Differences between work leave due to occupational and non-occupational accidents.
The management of the economic and health care benefits for workers who have suffered an accident at work is the task of the corresponding Mutual Insurance Company collaborating with the Social Security, which will be responsible for verifying whether or not we are really dealing with an accident at work.
This is because, depending on whether we are dealing with an accident at work or a non-occupational accident, we can appreciate 3 not insignificant differences related to (i) the benefit received by the worker; (ii) the entity that is responsible for paying the corresponding benefit and (iii) the entity or body that is responsible for the care service for the injured person.
- Non-occupational accident
When we talk about non-occupational accidents, we are talking about those accidents that do not have the status of occupational accidents, that is, those that occur completely outside the work performed.
These non-occupational accidents can lead to the recognition of a financial benefit of 60% of the regulatory base for common contingencies from the 4th day of sick leave up to and including the 20th day, and 75% from the 21st day onwards.
Between the 4th and 15th day of sick leave, the employer will be responsible for paying the benefits, and from the 16th day onwards, they will be paid by the Social Security National Institute (“INSS”) or the corresponding Mutual Society.
- Accident at work
On the other hand, an accident at work may give rise to the recognition of higher economic benefits, corresponding to 75% of the regulatory base for professional contingencies, from the day after the day of sick leave, making it more difficult for the collaborating Mutual Insurance Companies to declare an accident as an accident at work.
Falling while teleworking is an accident at work, a judge agrees with a worker.
It is clear that there is a difference between an occupational accident and a non-occupational accident and, until now, the Social Security Mutual Insurance Companies have generally maintained a restrictive criterion of what can be considered an occupational accident.
This is even more evident in cases where accidents, whether work-related or not, are suffered by teleworkers.
The general criterion of the Mutual Insurance Companies was to understand as “workplace” that which coincides with the specific post physically occupied by the teleworker, i.e. the space consisting basically of a table, a chair and a computer in their private home.
However, the recent Judgment of the Madrid High Court of Justice of November 11, 2022, following in the footsteps of other courts of justice, has declared that “the workplace in the home is not a watertight compartment isolated from everything around it, as we are led to believe”.
In this case, the Social Division of the Madrid’s High Court of Justice (“TSJ”) considered the accident that occurred to a teleworker who left his designated place of work to go to the kitchen to drink water and, after slipping, the bottle fell and injured his left hand to be an occupational accident.
After the Court of First Instance rejected the claim, the novelty introduced by Madrid’s TSJ in its rulling of November 11, 2022 is that it makes it clear that the causal link required to establish that we are dealing with an accident at work is maintained. And this, on the basis that:
- Art. 156 of the LGSS does not require that in order to classify the accident as an accident at work, the work must be the sole determining cause of the accident, the existence of an indirect cause being sufficient, as in this case.
- The accident took place during working hours and within the physical space configured as her private home.
- The accident occurred while carrying out a normal activity in working life: drinking water.
4. The parties had agreed, in the individual telecommuting agreement, that “Teleworking will be carried out as if he were at the workplace”.
In a similar sense, on October 26, 2022, a Court of Cáceres also recognized the occupational nature of the accident of a worker who fell while leaving the bathroom of her home with the intention of resuming her work activity.
In short, the Courts and Tribunals in our country are beginning to take a broad view of the occupational nature of accidents and to understand that the performance of certain activities that are not strictly work-related outside the space initially defined as “Workplace” are not outside the work routine and should therefore be covered professionally.
As has been indicated, it is essential to know what the interpretative line of our Courts and Tribunals is in order to be able to anticipate future unforeseen events and begin to conceive the workplace that we delimit in the teleworking agreements as a broad and increasingly less restrictive space.
RSM Spain’s Employment Department can advise you and help you in any matter of this type, so do not hesitate to contact us.
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