The government measures to contain COVID-19 remain in place for the foreseeable future. This includes the advice to employers to encourage their employees to work from home wherever possible. First and foremost, this means that the employer must, to some extent, concern itself with the quality of the employee's home workplace.
And what if working from home is not a realistic option? Can an employer be held liable for the harm suffered by an employee if he or she becomes infected with the virus?
Employer's liability; the legal basis
Employer's liability is provided for under Section 658 of Book 7 of the Dutch Civil Code. Under this section, employers have a duty of care, which obliges the employer to take the measures and provide the instructions which may reasonably be deemed necessary in order to prevent the employee from suffering harm in the performance of his or her duties. That is a strict standard. In determining the answer to the question of whether an employer has fulfilled its duty of care, the courts will carry out an assessment of both written and unwritten safety standards. It may therefore be the case that the court rules that an employer has failed to take adequate safety measures, despite it having observed all government measures designed to contain COVID-19. This will, however, depend on the specific circumstances of the case.
Should an employee suffer harm in the performance of his or her duties, then the employer will be liable for the loss suffered, unless the employer fulfilled its duty of care.
In order to claim such liability, the employee merely has to prove that he or she has suffered harm in the performance of his or her duties. Once this has been established, the employer’s liability for compensation may yet lapse if it can demonstrate that it has fulfilled the aforementioned duty of care, or that there is no connection between its mistake and the harm.
How does this relate to the government measures taken?
It will prove very difficult for employees to demonstrate that they have contracted COVID-19 in the performance of their duties. After all, the virus is everywhere and the employee may have contracted the disease elsewhere. Consequently, the first requirement for employer's liability will not easily be met, because the link between work and illness is indeterminate. Should an employer fail to take significant protective measures, a turning point may be reached by way of which a court will find that it is in fact sufficiently probable that the employee contracted the virus in the workplace.
Notwithstanding the foregoing, an employer must always fulfil its duty of care. Not only because the employer may otherwise be liable under civil law, but also because it would risk a fine from the Dutch Ministry of Social Affairs and Employment's SZW Inspectorate. It is clear that employers currently need to take additional measures in order to prevent their employees from contracting COVID-19 at work as much as possible. Employees must, for example, be well-informed of the dangers of COVID-19, and this danger must be limited to the greatest reasonable extent. The recommendation to work from home as much as possible is not without reason.
The following measures could also be taken into consideration; hygiene measures, the avoidance of physical contact between employees wherever possible, and, if applicable, the provision of adequate protective equipment, such as good-quality surgical masks in the healthcare sector. Furthermore, the employer must ensure that such safety measures are duly observed. If an employee fails to do so, the employer must confront the employee, and potentially send him or her away if he or she continues to refuse to follow the instructions.
The rules introduced in the Netherlands as a consequence of the coronavirus, such as maintaining a distance of one-and-a-half metres, must also, to the greatest possible extent, be enforced in the workplace. It is advisable to hangposters in the workplace containing warnings and rules, and then discussing these with employees on a regular basis. This is because people simplydo not always take sufficient care in the workplace. The chance that individuals fail to protect themselves adequately due to overtiredness and stress is very real, in these times this is particularly true for people in the healthcare sector.
Do you have any questions about this topic? Please contact our Insurance & Liability team.
