Is it necessary to update the table of occupational diseases to recognize illnesses in feminized activities

Is it necessary to update the table of occupational diseases to recognize illnesses in feminized activities

The Social Chamber of the Supreme Court has finally come to criticize the regulations on occupational diseases by openly pointing out that they do not include highly feminized professions. 

Therefore, in an attempt to make up for this legislative shortcoming, in line with the new regulations on equal treatment and non-discrimination, the Supreme Court indicates that the regulation on occupational diseases must be interpreted from a gender perspective.

What is an occupational disease?

The General Social Security Law defines occupational diseases as those contracted as a result of the provision of services -either through employment or self-employment- in professions specified in the “Table of Occupational Diseases” and which are caused by the elements or substances specified in the same table. 

In this sense, any disease contracted at work is not an occupational disease, but only those which, originating in the work environment and workplace, are typified as such in the Table of Occupational Diseases that appears in Annex I of Royal Decree 1299/2006.

Annex I is a three-column list that includes the occupational diseases identified, the agents that cause them -chemical, physical, biological, carcinogenic or by inhalation or contact with substances and agents other than the above- and the jobs in which the diseases may occur.

It is, therefore, a list that at first glance could appear to be “closed”. If the disease suffered by a worker is included in this list, it will be considered and classified as occupational. If not, regardless of whether it is suffered at work, it will not be considered as such. 

This closed nature of the list has been taken literally by the Benefit Management Entities, which, claiming that “they are not in the Table“, have declared the common origin of many pathologies suffered by workers in occupations that are not included in the list, even though the tasks described, and the pathologies developed are included.

What criteria are used to identify occupational diseases?

The classification of illnesses as occupational diseases is the task of the corresponding Management Entities, which, in order to verify whether an illness can be considered occupational, verify compliance with 3 requirements:  

• The disease must have been contracted as a result of employment. 
• That the person provides or has provided services in one of the professions established by regulation. 
• The disease must be caused by contact with the elements and substances established for each disease. 

From the analysis of the Table it is easy to see that it “falls short” and therefore, on more than a few occasions, especially in recent years, the Courts have had to declare that the diseases or afflictions suffered by geriatric nurses, cleaners, hairdressers or home helpers, all professions not included in the list of activities that can cause an occupational disease, should nevertheless be considered as occupational diseases, for the simple reason that the tasks performed by them coincided with those established in the RD.

This is what the Supreme Court has declared once again in the Judgment of September 20, 2022, in which it has recognized that the temporary disability of a cleaner, due to a torn rotator cuff in her left shoulder, derives from an occupational disease, despite the fact that her profession is not expressly included in the list of professions that can cause this pathology. 

The Social Chamber argues that, although the profession of cleaner is not included as a generator of this disease, unlike the professions of painter, plasterer or structural erector, it does not exclude that, like the professions of men, the profession of cleaner also entailed the performance of work of great physical effort -scrubbing, dusting, sweeping, etc.- which requires the elbows to be kept in a position that requires them to be kept in the same position as in the professions of painter, plasterer or structural erector, which require keeping the elbows in an elevated position, tension of the tendons and abduction or flexion of the arms, and should therefore be classified as an occupational disease.

Identical pathology, similar activity, but some professions (more masculinized) were included in the list and others (more feminized) were not. And it should not be forgotten that classification as an occupational disease has important economic consequences, since it basically implies greater benefits for those who suffer from it.

Recognition of occupational diseases in feminized activities

The novelty introduced by the SCSC of September 20 is that it makes it clear that the list in Annex I should not be closed or indicative, but on the contrary, it should be an open list. Furthermore, it focuses on a vitally important issue: the need to introduce a gender perspective in the judicial assessment of RD 1299/2006 in order to make up for its deficiencies.

RD 1299/2006 includes among the professions likely to generate occupational diseases, professions mainly performed by men (plasterers, painters, carpenters, etc.), it also includes professions performed by workers of both sexes (butchers, dentists, health workers, etc.), but, on the other hand, nothing is said about highly feminized professions. 

Our High Court considers this to be indirect discrimination on the basis of sex, since it is clear that the rule places highly feminized professions, and therefore women, at an obvious disadvantage with respect to professions usually performed by men.

The Women Institute demands the inclusion of a gender perspective in the assessment of risks and illnesses in feminised professions. 

What is now a new issue for us is not so new for the Women Institute. 

For years, the Institute has been denouncing the precariousness of highly feminised professions, stating that, unlike male workers, female workers, despite working in professions that also have repercussions on their health and safety, do not have their health problems recognised as deriving from their profession, but rather, in the majority of cases, they are recognised as deriving from common illnesses.

For this reason, during the year 2022 this Institute already indicated that the incorporation of the gender perspective in the prevention of these illnesses would be one of its priority lines of work, in order to guarantee that the physical discomfort and psychosocial risks of shoemakers, home helpers, farmers, seasonal workers, etc., caused by the action of the elements and substances established for the corresponding illness, are recognised as occupational illnesses.

Is it necessary to update the list of occupational diseases?

It is clear that the SC ruling highlights the need to update the Table of Occupational Diseases to include highly feminised professions. 

This would prevent women suffering from this type of illness from having to go to court to obtain an effect on their benefits that they should have had from the outset, guaranteeing effective equality between women and men and not making this equality dependent on the interpretation of the rule made by each Court. 

In any case, while waiting for the current legislation on occupational illnesses to be updated and while it is up to the Courts to decide, it is essential to lose the fear of initiating legal proceedings to obtain an increase in the pension to which you are entitled, always relying on good legal-labour advice aimed at combating the legal uncertainty to which the legislator has subjected us. 

To this end, the Employment Department of RSM Spain can advise you and help you in any claim of this type, so please do not hesitate to contact us.