If I have an accident while working from home, is it domestic or work related? While this isn’t a new question among veteran homeworkers, the compulsory nature of remote working imposed by Covid-19 has brought the issue to the fore. Yet because any accident that takes place at home is by definition private, it is a complex issue that typically requires proper legal advice. But are the existing laws suitable for the current and future situation?
Before we explore this further, it is necessary to better define what a work accident actually is. Spain’s General Law on Social Security (LGSS), approved by Royal Legislative Decree 8/2015 of 30 October, clarifies it as “any bodily injury that the worker suffers on the occasion of or as a consequence of the work he/she performs as an employee”, specifying that “it will be presumed, unless proven otherwise, that injuries suffered by the worker during the time and in the place of work constitute an accident at work”. We emphasise the final sentence because of its relevance to this article.
There is one key point to consider here: the presumption that all accidents that occur during working hours are employment-related. The General Council of Occupational Safety and Health Professionals (CGPSST), a Spanish body responsible for settling these type of disputes, reinforces the terminology as “wilful intent or gross negligence, which is difficult to accommodate in remote working”. [ELP1] The CGPSST embraces the burden of proof concept established by Spain’s Supreme Court in numerous rulings, according to which an accident occurring both in the workplace and during working hours “must be considered work-related, and if the employer or the insurance company do not agree, it is up to them to refute this presumption and break the link between the work and the accident. In other words, to prove that the accident was not caused by work”.
It should be noted that the CGPSST considers the opposite to be the case for any incident that takes place outside the workplace or working hours. It will not be considered a work accident, and it is up to the employee to prove that the injury or illness was caused by work. This is the case when working off the clock and the right to disconnect is not observed, or when suffering a work-related heart attack outside the workplace, for example.
It is useful to understand the legal position when we talk about remote working. According to Spain’s Royal Decree Law 28/2020, it is “remote work that is carried out through the exclusive or predominant use of computer, telematic and telecommunication means and systems”.
What about existing case law on this issue, given that it is now relevant to such a large number of people both in Spain and globally? Due to the relatively recent timeline involved, the case law database of Spain’s General Council of the Judiciary does not yet record results with the combinations ‘accident at work’, ‘working from home’, ‘remote working’, or ‘telecommuting’. When the search is extended to include the Spanish High Courts of Justice, 44 rulings appear, although none of them refers directly or indirectly to the circumstances outlined in this article. As a result, legal teams use existing case law on cases involving an accident while working from home, applying it by analogy considering that for these purposes there is no difference between the traditional and remote ‘workplace’. For the avoidance of doubt, we have included below the relevant excerpt from Spain’s Statute of Workers’ Rights (ET):
Let us leave you with a final reminder: the order and functionality of your home office not
only helps you to make the most of remote working, it also prevents accidents.