Part 1 – Is the employer liable if an employee gets infected with Corona at work?
The Dutch Government has still not introduced an obligation to wear face masks in order to be protected against Covid-19. In fact, while Amsterdam and Rotterdam announced a few weeks ago that they desperately wanted to introduce a legal requirement to wear face masks in busy public places, it has already been decided after 2 weeks to abolish the face mask obligation.
This article does not discuss politics, nor medical reasons why wearing a face mask should probably be made compulsory.
Here it is explained from a legal point of view and in order to avoid liability, why the employer should think very carefully about requiring wearing face masks at the workplace.
The legal background
Pursuant to Section 7:658 of the Dutch Civil Code, the employer has a duty of care for the working environment of the employee.
The employer must take such measures as are reasonably necessary to prevent damage to the employee in the performance of his duties. If the employer fails in his duty of care, he is liable to the employee for damages suffered in the performance of his duties.
Clear example: the helmet on the construction site
If an employee works on the construction site, the employer must ensure that the employee wears a safety helmet, safety shoes, that fall protection equipment is in order and complied with, etc.
But what about protection against Corona? It seems less obvious than a safety helmet on a construction site, does it…
What should the employer do?
The government has already made it clear that one has to keep a distance of 1.5 meters, no more shaking hands, we often have to wash our hands and sneeze in the elbow instead of in our hand. As an employer, it is then convenient to put up signs to remind employees of this.
But is the employer “safe” with just those measures?
Pursuant to Section 7:658 (2) of the Dutch Civil Code, the employer is liable if the employee has suffered damage as a result of exposure to a substance at work. What if the employee is exposed to Covid-19 at his workplace?
The employer can release himself from this liability by showing that he has taken the measures that were reasonably necessary to prevent the employee from suffering damage as a result of the exposure.
What should the employer do – is it enough to place screens and sit at 1.5 meters without a face mask?
It is thought that this is not yet clear because we do not yet have Corona judgments from higher courts. But there is clear case law – even from the Dutch Supreme Court – in a similar situation: The exposure to asbestos at work and the employer’s liability based on that exposure.
What about employer’s liability due to exposure to asbestos?
At the time, the exact consequences of exposure to asbestos were not known, and yet the Dutch Supreme Court held that the employer should take the safety measures that could be expected of him (HR 06-04-2018, ECLI:NL:HR:2018:536 and HR 25-06-1993, ECLI:NL:PHR:1993:AD1907).
If it is established that the employer has failed to take safety measures and therefore the chance of as yet unknown dangers are significantly increased, then the employer is also liable for the consequences thereof.
The employer is therefore not relieved of his liability if, although he was not aware or should not have been aware of that danger at the time, his failure to take the aforementioned safety measures has significantly increased the chance that the employee would ingest asbestos at work.
However, this depends on the circumstances of the case and on the knowledge and insights existing at the time, which safety measures could be expected from that employer from that moment on. In that context, the degree of certainty that working without protective equipment, such as face masks (or other PPE), entails health risks and the nature and seriousness of those risks are also important.
What does this mean for the employer in connection with Corona?
The employer has a duty of care for the safety of the employee’s working environment.
This applies to fall protection on the construction site, but also to the safety of a nurse in a nursing home, the hairdresser in a hairdressing salon and the doctor and the nurse in the hospital.
On the construction site, the answer is easy: helmet duty, fall protection, safety shoes and warning signs.
But also at the hairdresser’s, the nursing home and the hospital, the answer is just as clear: The employer must take all measures that are reasonably necessary to prevent the employee from suffering damage in the performance of his duties.
We know that people can suffer damage as a result of infection with Covid-19. We also know by now that the infection is caused by small droplets, when coughing, sneezing, but also when singing and talking. Knowing this, the employer has to take measures that reduce the chance of infection: work as much as possible at home, but if that is not possible or not desirable, then appropriate protection is necessary.
Many people hide behind the argument that it is not certain whether face masks really help.
We can assume that, with proper use, face masks are likely to reduce the risk of infection. We also know that face masks are worn in every operating room and in every intensive care unit to prevent contamination of the patient and the doctor/nurse.
Why should the employer omit a simple measure such as having employees wear face masks when it might later prove that nursing homes, hairdressers and other employers have acted carelessly and – retroactively – happen to be liable.
In conclusion: map out your working floor and your daily processes realistically and assess the risks and possible measures to mitigate those risks.
If you would like a tool for the risk analysis, please send an email to firstname.lastname@example.org with the reference “Corona checklist on the working floor” and we will send you the checklist free of charge. Please indicate whether you wish to receive the checklist in Dutch or English.