In the UK, the first court cases are pending of employees seeking compensation after contracting coronavirus at work. Can similar lawsuits be filed in the Polish legal system?
In accordance with the Labour Code, employers must protect the health and life of employees by ensuring safe and healthy work conditions in line with advances in science and technology. Such responsibility may not be limited by shifting such duties to employees and by assigning tasks related to occupational health and safety to third-party specialists. Considering these rules, an employee could claim compensation for contracting the coronavirus at work if he or she could prove that during the epidemic the employer, through their fault (as a result of at least gross misconduct), neglected duties related to occupational health and safety. An example of such neglect could include ignoring the pandemic-related risks, failure to ensure basic protection measures, or work organisation resulting in employees congregating.
When filing such claims, an employee would also have to prove that there is causal link between the coronavirus infection and the employer’s neglect. Consequently, the employee must prove that he or she complied with the rules in place, such as an obligation to wear a mask and disinfect hands, and that the virus infection occurred during the performance of employee duties, i.e. while at the workplace or any other place designated by the employer.
It should be emphasized, however, that the coronavirus is highly contagious and that the infection can occur in many places, such as public transport, shops, cinemas, etc., so it may be very difficult to prove that it occurred in the workplace. An employee who has significantly limited his professional activity would have a better chance to do so, for example an employee who worked in one establishment, did not use public transport and who could prove that a number of other employees also fell ill at the place of work.
Consequently, can a coronavirus infection be treated as an accident at work? The answer is negative, as according to the position statement of the State Labour Inspectorate of January 29, 2021, an infectious disease such as COVID-19 does not fall within the statutory definition of an accident at work.
In order to qualify an incident as an accident at work, four conditions must be met, i.e. (i) the incident is sudden, (ii) there was an external cause, (iii) the incident is work-related, and (iv) the incident resulted in an injury or death. The last condition is the most important. According to the Act on Social Insurance against Accidents at Work and Occupational Diseases, an injury is damage to the tissues of the body or organs of a person as a result of an external factor. Consequently, the National Labour Inspectorate does not treat coronavirus infection as an injury resulting from the occurrence of an accident at work, but as a medical condition that could possibly be considered an occupational disease.
In accordance with the Labour Code, a disease is considered an occupational disease if it is listed on the List of Occupational Diseases and was caused by factors harmful to health that occur at work. The List includes, inter alia, infectious diseases or their sequelae. The position statement of the Minister of Development, Labour and Technology of January 19, 2021 explained that this definition includes COVID-19.
Subsequently, in March 2021, the Polish Society of Occupational Medicine and the Occupational Medicine Section of the European Union of Medical Specialists recommended, in the field of occupational medicine, separate rules for recognizing COVID-19 as an occupational disease in the case of healthcare workers and separately in other professional groups.
As for the first group, in June 2021 a bill on occupational diseases caused by COVID-19 in medical professionals was submitted to the lower house of the Polish Parliament.
On the other hand, according to the proposal of the Polish Society of Occupational Medicine, decisions on the diagnosis of an occupational disease in other employee groups should be always made individually, inter alia, after confirming a significant risk of SARS-CoV-2 infection in the workplace (e.g. after proving sufficiently long and close contact with people diagnosed with COVID -19 and in the absence of evidence of a source of infection outside the workplace).
The European Union of Medical Specialists also issued a work-related position statement stating that the criteria for recognizing a virus infection as an occupational disease should be the same for all occupations when it has been proved that exposure to SARS-CoV-2 in the workplace caused COVID-19.