The global health emergency triggered off by the start of the COVID-19 pandemic meant that more than half of the working population in Spain had to work from home instead of at their normal places of work. Since the 17th of March last year, among many other measures taken by the Government, remote work has been established as being preferential to prevent the spread of coronavirus.
On the 22nd of September, 2020 and as a result of the social consensus, the Remote Work Agreement was signed, the articles of which were established in the Spanish Royal Decree-law 28/2020, which governs remote work in Spain.
This new regulation defines remote work and teleworking in a different way, namely that teleworking is a subspecies of remote work. Nevertheless, when it comes to deciding whether a contingency is an occupational accident or not, the definitions included in the Law are important, although in this particular case, what is really important, are some of the points that must be specified in the remote work agreement that is drawn up to actually work in this way.
We find that, in the aforesaid Royal Decree, the legislator has not established the rules and regulations concerning the occupational hazard obligations of the companies and the workers, which means that there is a legal vacuum due to not having specifically stated what an occupational accident is when the services are provided remotely by the worker and more specifically “teleworking”. Subsequently, given this omission in the regulations we have to resort to the general regulations on the prevention of occupational hazards and the General Social Security Law. But what is definitely undeniable is the presumption that if the accident occurs in working hours and at the place of work, it is labour-related. Wherever it happened, the Law makes no distinctions in this sense.
A number of questions are therefore raised that any company must evaluate, if it is considering the possibility of using “teleworking”. Are all accidents that happen when working remotely labour-related? Are there any limitations? How and who must prove that an accident is indeed labour-related?
The presumption that it is labour-related is provided for in article 156.3, of the General Social Security law, which states:
“Unless proven otherwise, occupational accidents shall be considered to be injuries suffered by the worker during working hours and at the place of work.”
In this case, we would have to resort to the theory of the burden of proof stated by the Supreme Court in countless judgements, bearing in mind the place of work and the working hours, although it is true that on many occasions the company or the Mutual Insurance company covering occupational accidents do not agree on this classification and they have to then rebut this presumption and destroy the link between the work and the accident that has happened.
Opposite is the case, when an accident occurs outside working hours and the place of work. Initially, it is not considered to be an occupational accident and the worker must prove that the accident was indeed caused by their work.
Here, as aforementioned, it is important to know what is specified in the remote work agreement, and what the mutual insurance company will ask for to be able to find out and assess what really happened. In particular, the following sections of the required minimum content of the agreement must be taken into account:
- Working hours.
- Rules on availability, percentage and distribution between actually working onsite in the workplace and remote work.
- The workplace where, if applicable, the worker will spend part of their working day.
- Place of work chosen by the worker to work remotely.
Another matter that is very important when it comes to accidents associated with teleworking is if, according to the type of accident, it can be determined whether it was a domestic accident or an occupational accident.
On this point, although the regulation does not specifically contain this definition, an answer can also be found in article 156 of the General Social Security Law, which gives a very broad definition that, together with the case law from the Courts, define the concept of occupational accidents in the Spanish Social Security System.
This article literally states
“Article 156. Concept of an occupational accident.
1. An occupational accident is understood to be any bodily injury suffered by the worker on the occasion of or due to the work that they are doing for their employer.
2. Occupational accidents shall be considered to be:
a) Those that the worker has when they are going to or from work.
b) Those that the worker has on the occasion of or as a result of holding an elective office associated with a trade union, as well as the accidents that happen when they are going to or returning from the place where the tasks related to these elective offices are carried out.
c) Those that happen on the occasion or as a result of the tasks that, although they are different to those of their professional group, are carried out by the worker in compliance with the instructions given by their employer or spontaneously so that the company runs smoothly.
d) Those that occur in rescue operations or in similar types of events, when they are associated with the work.
e) Diseases, which are not provided for in the following article, which the worker gets due to carrying out their work, as long as it can be proved that the origin of this disease is solely work-related.
f) The diseases or defects that the worker had previously get worse as a result of the injury caused by the accident.
g) The consequences of the accident that are modified in terms of the nature, duration, seriousness or outcome, due to intercurrent diseases, which lead to complications arising from the pathological process that is determined by the accident itself or that is caused by conditions acquired in the new environment where the patient has been taken to be cured.
3. Unless it is proven otherwise, it shall be presumed that the injuries suffered by the worker during their working hours and at their place of work are the result of an occupational accident.
4. Notwithstanding the aforementioned however, the following cases shall not be considered to be occupational accidents:
a) Those that are due to force majeure outside the workplace, which are therefore not considered to be related in any way with the work that was being done when the accident occurred.
Under no circumstances whatsoever shall force majeure outside of the workplace be considered to be sunstroke, lightening or another type of nature-related phenomena.
b) Those that are due to the wilful intent or gross negligence of the worker who has had the accident.
5. The classification of an accident being labour-related shall not be hindered by:
a) The professional negligence that is a result of being overconfident while carrying out the normal tasks of the job.
b) The criminal or civil liability of the employer, a workmate of the person who has had the accident or a third party, unless it is completely unrelated with the work.”
As for injuries that might be considered to be occupational accidents in teleworking, the most common cases would be bodily injury that is suffered on the occasion of or as a consequence of the work that is being done, very much bearing in mind the presumption in favour of the concept of an occupational accident provided for in the third paragraph of the aforesaid article 156 of the General Social Security Law.
As we have seen, the place of work and the working hours are particularly important when it comes to teleworking. The CEOE (Spanish Confederation of Employers and Industries), together with the Spanish Association of Occupational Accident Mutual Insurance Companies have said that with regard to working at home or wherever the teleworking is going to be carried out, a specific area should be agreed upon and set aside to work in to avoid any incidents in this sense.
As for the working hours, it is also important that the distribution of the working day is established, the time that work begins and ends, the procedure involved in recording any type of time out or disconnection during the day and the measures taken to comply with the regulations related to the right to digital disconnection.
There is another case that might raise questions when it comes to remote work and these are “commuting accidents” that happen when going to or returning from work, a large group refuses to accept that this type of accident is possible in teleworking.
This type of “commuting” accident might indeed happen when there is a mixed system in the provision of services, that is to say, the employee works part of their working day onsite in the actual workplace and the other part of the working day remotely, via teleworking, or on certain days or months they work onsite in the workplace and/or others remotely. So, on the days when the worker goes to and from work they could have an occupational accident and in contrast on the days when they telework from home, they do not have to travel back and forth to work, so this type of accident cannot occur.
The conclusion can be drawn that teleworking incidents will be accidents, just as if they happen in the workplace, however, the classification of contingencies that occur in this context will have to be analysed in great detail and all the facts related to the accident will have to be ascertained, seeing as under no circumstances whatsoever can there be a generalization that presumes that all accidents that happen at home where the remote work is carried out are occupational accidents. On this point it will be case law that sheds light on how this matter is interpreted, the Superior Court of Justice of the Basque Country and the Court of Girona, which is in charge of labour and social security matters, have already embarked on this with judgements that analyse cases of accidents that occur in “teleworking”.