Employer liable for damages resulting from lung covid?

More than two years ago, the covid pandemic also made its appearance in the Netherlands. A few weeks ago it became known that the first employees who claim to have contracted covid at work-lung covid patients-are holding their employers liable for the damage they suffer as a result of that infection. Many of them worked in healthcare, but employees may have also become infected in the workplace in other places where working from home was not possible. In principle, employees who have been sick for more than two years are no longer entitled to continued payment of wages by their employer and suffer income losses. Can employees indeed recover these damages from their employer? In this blog, we inform you about the employer's duty of care and employer liability in light of long covid.

Damage incurred in the performance of duties

The employee seeking to recover damages from his employer as a result of long covid must first prove that the injury was sustained in the course of employment. Therein lies an immediate challenge for the employee.

After all, it is not easy to determine the origin of an infection: it may have been contracted anywhere That also means that it is not easy to determine whether you as an employer are at any fault: the direct link between the work and contracting the disease cannot be established. For example, you might think of an employee in a manufacturing plant, who cannot work from home. It is easy to imagine that at some point a corona outbreak has taken place within the company. If the employee presents a positive corona test during that outbreak or shortly thereafter, it does not automatically mean that he has contracted corona while performing his duties. After all, the employee may also have become infected in private situations.

Even in the case of healthcare personnel, who were particularly exposed to the risk of becoming infected at the beginning of the pandemic, it cannot be conclusively established that covid was contracted in the performance of their duties.

With other occupational diseases, such as cancer after asbestos exposure or RSI, this problem of proof also plays a role. The courts have therefore met the employee with the so-called "labor law rule of reversal". If the employee has been exposed to conditions that could be damaging to his health and makes it plausible that the health complaints could have arisen as a result, the direct connection between the work and the contracting of the disease is assumed. It remains to be seen whether the courts will apply the same standard to health injuries resulting from lung covid.

Duty of Care

To the extent that the employee succeeds in proving that his health injury occurred in the performance of his job, it is up to the employer to prove that he has fulfilled his duty of care. After all, as an employer, you have a duty of care regarding the safety and health of your employees. Employers are required to take such measures and provide such instructions as are reasonably necessary to prevent your employee from suffering harm in the performance of their duties. It is a high standard, but again, the employer does not have to create an absolute guarantee.

The duty of care refers only to the protection that can reasonably be required of the employer. To assess what measures can be required, the circumstances of the case must be considered. Relevant circumstances are the nature of the work, the knowledge of the danger, the chance of realization and the severity of the consequences and how difficult the measures to be taken are. Employers' duty of care may therefore differ from case to case.

Thus, whether you have breached your duty of care to your employee(s) depends on all the circumstances. This is all the more true when considering damages resulting from a corona contamination, which may have been contracted in the workplace. Not every employer has had the ability to have employees work at home or continuously maintain a distance of one and a half meters from each other. In those cases, in any case, it must be assessed whether you could and should have taken other measures, such as a duty to wear masks, systematically cleaning hands, wearing gloves, reduced use of employees at the same time and so on. Even if you have complied with all (prescribed) measures, liability for damages is not excluded.

For example, one of the care workers was instructed to care for a client without protective equipment, according to news reports. Her supervisor knew at the time that the client may have corona. The employee is still experiencing lung covid two years later. In that case, the employer may have failed to fulfill its duty of care.

Damage sustained during company outing

Damages suffered in the performance of work sometimes include those caused during a company outing. The employee who believes he or she became infected during a get-together from work may try to prove that a sufficiently close connection exists between the get-together and work. This should include mandatory attendance at the get-together or a role model, where attendance is expected.

If it cannot be assumed that this sufficiently close connection exists, all that remains is possible liability under good employment practice as a "safety net" for the employee. On this basis, employers can under circumstances be held liable for work-related accidents, which are not covered by the previously described regulation. Good employment practices require (among other things) that you also take preventive measures on company outings, such as pre-testing and all of the previously mentioned measures, to reduce the risk of contamination. Again, the more control the employer can exercise over the situation, the more precautions he must take.

Conclusion

The employee claiming employer liability will have to prove that the injury was suffered in the performance of his work. The employer can defend himself by showing that he fulfilled his duty of care.

Whether the lung covid patients who have held their employers liable will be successful in their claim is difficult to predict. After all, the connection between the infection and the work is difficult to establish. We expect that judges will soon have to rule in such cases. It will then become clear what is sufficient for employees to hold employers liable for damage long covid and how far employers' duty of care extends(s) to prevent contamination. 

The final word has not yet been written and/or spoken on employer liability for damages suffered as a result of long covid and we will keep you informed. If you have any questions about employer liability, please contact us.