Quite quickly after the start of the COVID-19 pandemic, Fedris (the Federal Agency for Occupational Risks) indicated that COVID-19 infection is recognized as an occupational illness for a group of specific professions (mainly in healthcare). At that time, Fedris took the position that an infection could not be considered an occupational accident.
This is now being reconsidered, provided that four conditions are met.
In order to recognize an event as an occupational accident, the following criteria must be met: A sudden event (1), which causes an injury (2) and occurs during (3) and due to the fact that (4) the employment contract is being executed.
It is primarily the first criterion that is a point of discussion in the recognition of a COVID-19 infection as an occupational accident. Our knowledge of the virus is increasing every day. We now know that infection does not require long-term or repeated contact with the virus. A short-term and/or one-time contact is sufficient for causing infection. From a technical point of view, the emission of respiratory droplets or contact with a surface covered with such droplets can be considered a sudden event. However, this sudden event is almost undetectable in most cases. Determining which contact is at the source of the infection will often prove impossible, given the variations in incubation period.
The burden of proof is on the employee. The victim must provide evidence of the sudden occurrence, the injury and the fact that he/she was engaged in the execution of the employment contract. And therein lies the rub: How can we prove when an infection occurred? The evidence of the sudden event may be submitted by all possible legal means, including witness testimony.
In the event of a refusal by the insurer, the employee may always ask Fedris to investigate the insurance company’s decision. In the event of a dispute, the employee may refer the matter to the Labour Court.
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