We explain which are the situations in which the leave of absence by Covid-19 is considered as a professional contingency. In addition, what happens with illnesses derived from exposure to this disease and possible implications.
The leave of absence by Covid-19 and derived illnesses.
After the beginning of the health crisis and in order to protect public health, the leave by Covid-19 was exceptionally considered as a situation assimilated to an accident at work. This was exclusively for the economic benefit of temporary disability, and for those periods of isolation and contagion of workers caused by this disease.
However, if it is proven that the contagion of the disease was contracted with exclusive cause in the performance of the work, the contingency will be qualified as an occupational accident for all purposes.
That is to say, the general rule of considering the assimilation to the work accident exclusively for purposes of economic benefit due to temporary incapacity, has its exception for those cases in which it is proven that the contagion has been contracted at work. And this is the “exclusive cause” of the same. In these cases it will be qualified as an accident at work for all purposes and without reference to specific occupations.
Provenance or not of the benefit surcharge
If we ask ourselves how this affects companies. Well, in the event that a contingency is qualified as professional, it is possible that the beneficiaries of the benefits of the contingency may claim that the origin of the contingency has its cause in the failure of the employer to comply with the required safety and health measures in the workplace. And therefore, the declaration of the benefit surcharge provided for in Article 164 of the Consolidated Text of the General Social Security Law may be requested.
This article establishes that all economic benefits that have their cause in an accident at work or occupational disease will be increased, from 30% to 50%. Depending on the seriousness of the fault. When the injury is produced by machines, devices or in facilities, centers or workplaces that lack the regulatory precautionary devices. They have them unused or in bad conditions. When the general or particular measures of security and hygiene at work have not been observed. Or the elementary measures of health or personal suitability for each job. Taking into account their characteristics and the age, sex and other conditions of the worker.
Consequences
The responsibility of the payment of the mentioned surcharge will fall directly on the infringing company and it will not be able to be object of any insurance. Any agreement or contract made to cover, compensate or transfer it is null and void.
Therefore, it is fundamental and very important that companies comply with their responsibility to adopt the appropriate measures to avoid risks of accidents at work. Including, as we explain in this text, those risks that could derive in situations of contagion by the COVID-19.
Failure to comply with these measures may be sufficient reason for the imposition of a surcharge on benefits by the INSS. Non-compliance with these measures may be sufficient reason for the imposition of a surcharge on benefits by the INSS. Since the INSS could establish the payment of the surcharge to be paid by the employer during the whole period of time that the affected persons were collecting the pensions of temporary disability or widowhood with cause in the contingency qualified as professional.
Therefore, from our Labour Consulting Department we insist on extreme safety and health measures in the workplace. As well as the non relaxation and the strict fulfillment of the same ones in the work centers. In the interest of all, employees and company.
Arrabe Integra
Labor Consulting and HR Management
