Employer’s Liability with Respect to Potential Cases of COVID-19 of Its Employees

Currently, there has been controversy regarding potential employer’s liability due to COVID-19 infections at the workplace. In my opinion, it is difficult to hold an employer liable for COVID-19 cases at the workplace because it is a force majeure case. In addition, the level of exposure to the virus is bigger than any measures that an employee might take at the workplace, with the exception of some areas such as health care providers.

  • The labor Code defines work risk as the “harmful events to which the workers is subject on the occasion of or as a consequence of their activity. With respect of employer’s liability, occupation diseases and accidents are considered occupation risks.

  • Consequently, the risks arising out of working activities are the employer’s responsibility and there are obliged to compensate the employee for the personal damages suffered as a result of the disease contracted in the performance of their duties.

  • The Ministry of Labor, through Agreement Nº MDT-2020-023, which amended art. 1 of Agreement Nº MDT-2020-022, reasoned that, the COVID-19 pandemic does not constitute a work accident or an occupational disease. However, it leaves the door open than in certain cases, it can be considered as such.

  • Similarly, the Draft of the Organic Law of Humanitarian Support considers a reform to article 363 of the Labor Code that refers to occupation diseases and includes a new category for people in activities which are linked to high COVID-19 contagion risk.

  • Given the nature of the virus, any worker at any industry might be exposed to the virus, and in some cases this exposure might meet the requirements established under article 347 of the Labor Code and COVID-19 might be considered a risk at work. However, it is important to consider the following:

    • The employer’s duty to take all necessary measures to protect the life and health of its workers. In doing so, there won’t be any risks for the employer.

    • At the same time, there is a duty of prevention from the employee, who must follow the risk prevention measures adopted by the employer.

    • In case both the employer and employee have taken all appropriate measures and followed all internal protocols to avoid the spread of COVID-19, but still someone catches the virus, this may be because the risk of exposure is still very high and it is considered a force majeure event.

  • As a result, in case of a potential claim of the employee, they will require to prove the direct link between the damage suffered and the working activities performed. This might be particularly difficult in cases when the employer has followed all the security protocols implemented and taken all necessary safety measures.

Disclaimer: This document is informative and does not, and is not intended to, constitute legal advice.