Working in the office brings extra responsibility for employers. Because what if a Covid-19 infection occurs there? Ronnie Eisenmann and Liëll van Hezik believe that employers are liable for infections.

A lot has been written recently about the coronavirus and labor law, and especially about the Temporary Emergency Bridging Employment Measure (NOW). Yet it is quite likely that the coronavirus will remain legally relevant in the long term. There is a good chance that the first lawsuits will be held in the not too distant future in which the employer is held liable for a corona infection at work.

In the Civil Code (in article 7:658), the legislator stipulates that the employer must ensure a safe working environment. If the employer does not comply with his duty of care, he is in principle liable for the damage suffered by his employee in the performance of his work. Case law shows that this is the case quite quickly.

If an employee contracts corona and it is likely that he or she contracted it at work and suffers permanent injury, it is certainly not inconceivable that the employer is liable for the damage if it turns out that insufficient measures have been taken to prevent contamination. prevent.

The so-called duty of care means that the employer must make every effort to prevent corona contamination in the workplace. The government has called on employers to have employees work from home as much as possible, if possible. If at all possible, an employer must continue to facilitate this.

Follow instructions
The extent to which the employer’s duty of care extends depends greatly on the situation and will differ per sector. In industries where working from home is not an option and contamination is more likely, such as in the supermarket or in healthcare, more can be expected from an employer in terms of the precautionary measures to be taken. This could include making personal protective equipment available, but ensuring that cleaning takes place more often and thoroughly. In shops, a good employer will now really have to provide contactless payment, splash screens and markings on the floor, for example.

The employer must always keep a close eye on the instructions of the National Institute for Public Health and the Environment and the government and adjust his policy accordingly. It is also important that the employer regularly checks whether the instructions are being followed. The employer may be expected to take action against an employee who does not comply with the rules and thereby endangers others.

No obligation
It may well be that employees enjoy coming to work again or that they now have the opportunity to do so again because the children are going back to school. It is therefore important that employers draw up rules and take measures that can reasonably be expected of them. Any employee concerns should be taken seriously and information should be shared clearly with employees. The employee must be able to count on the employer doing everything possible to minimize the risk of infection.

Corona infection at work cannot be prevented 100 percent, but make sure that as an employer you can demonstrate that you guarantee the safety of employees as much as possible. Therefore, draw up a clear corona protocol, provide it to the employees and discuss it. Ensure that the rules are followed and adjust the protocol if circumstances change. The severity of the corona crisis and the consequences for an employee infected at work mean that one cannot afford to be without obligation in the employer-employee relationship.

Published in Het Parool of May 29,  2020