The employer must take into account the possibility of the requirement of surcharges due to lack of security measures.

After the health situation produced in Spain by SARS COV 2, a clear tendency has developed, on the part of employed workers in companies, to request from the National Institute of Social Security, the declaration as a professional contingency of diseases or sequelae derived from the contagion of said virus, using the description of work accidents made in article 156 of the revised text of the General Social Security Law, which states: “a work accident is understood to be any bodily injury that the worker suffers on the occasion or as a consequence of the work that he performs as an employee ”.

Likewise, it indicates that the diseases “(…) included in the following article, contracted by the worker as a result of the performance of his work, will be considered as work accidents, provided that it is proven that the disease was exclusively caused by the execution of the same.”

We are not hiding the difficulty that the successful accreditation that the illness was caused by the “exclusive cause” of the labor provision can present for the worker, and in any case, within the workplace, since it is tremendously difficult to locate, on the date , time and place, the moment when the employed person could have been infected with COVID-19. Let’s think about what could have been within the weekly rest; in daily rest periods, etc. Or simply, let’s think about those workers who provide their teleworking services, within a family environment or outside the employer’s material organization, or in those cases in which the contagion has occurred on the way to or from the workplace : Should they, in the latter case, be considered an “in itinere” work accident?

We could also think about the alleged contradiction that could exist between the consideration of an occupational accident to a disease contracted as an “exclusive cause” of work, and paragraph a) of number four of the

Article 156 of the General Law of Social Security, which states that “Notwithstanding the provisions of the previous sections, those that are due to force majeure unrelated to work will not be considered an accident at work (…), meaning that this Anything of such a nature that it does not bear any relation to the work that was carried out when the accident occurred ”.

The alleged contradiction, as we say, would derive from the consideration itself as force majeure of all the negative events produced as a result of the pandemic and that have made the payment of mortgages, rents, the suspension of procedural terms, and, even, the compulsory nature of teleworking, the reduction of working hours and schedule changes, the recoverable paid leave or the almost automatic concession of the ERTES of contract suspension or reduction of working hours as effects of this “force majeure”.

In this case, it would be tricky to determine that, on the one hand, the cause is exclusively produced by work, and, on the other hand, that the cause has nothing to do with work (force majeure).

But, finally, overcoming these obstacles in fact – it is rather a matter of factual evidence – and also taking into account the obstacle that the workers may pose the circumstance that, in these cases, the presumption does not operate ” iuris tantum ”of work accident (“ it will be presumed, unless proven otherwise, that the injuries suffered by the worker during the time and in the workplace are constitutive of work accidents ”; article 156.3 of the LGSS), when required the full proof of the “exclusive cause”, we will focus, in this article, on the subsequent practical consequences that these measures may entail for the employer when the INSS is requested to declare the contingency as a professional.

One of the most important consequences of the declaration of the contingency as a work accident is the so-called “surcharge of economic benefits for lack of security measures”, foreseen

in article 164 of the LGSS, which indicates, in its first section: “All economic benefits that have their cause in work accident or illness

professional will be increased, depending on the severity of the offense, from 30 to 50 percent, when the injury occurs by work teams or in facilities, centers or workplaces that lack the regulatory means of protection, have them disabled or in poor conditions, or when the general or particular measures of safety and health at work have not been observed, or those of personal adaptation to each job, taking into account their characteristics and the age, sex and other conditions of the worker. ”

Before entering to analyze this figure of the economic surcharge, we must point out that it does not apply to the case regulated in article 5 of Royal Decree Law 6/2020, of March 10, by which it is foreseen as “situation assimilated to accident of work “the periods of isolation and contagion, for the purposes of the economic benefit of temporary disability, unless, of course, the” exclusive cause “of which we have spoken before is proven.

The employer must take into account this possibility of the requirement of surcharges for lack of security measures, a requirement that depends on the report made by the Labor and Social Security Inspection, which will be based on the individualized verification of the circumstances in which it was developed. the work activity of the affected, assessing aspects such as the type of job held, the characteristics of the worker, the performance of overtime, the extension of working hours, the level of risk of exposure to COVID-19, etc.

What, then, are the rules whose violation will enable the imposition of the real of the economic surcharge? In order not to exhaust our reader, we will limit ourselves to indicating that the general rules are those of Occupational Risk Prevention and Prevention Services, without forgetting, of course, that there are other more specific ones that regulate from the agents biologicals that can be used in the workplace, even those that regulate the Individual Protection Equipment (PPE) that must be delivered to workers. The regulations are enormous, especially after the spectacular production of regulations by central, regional and local government authorities, since the beginning of the pandemic.

Since throughout this week our children have returned to school, and this situation has caused numerous headaches both for public administrations and for parents and teachers, we believe it is very appropriate to focus this issue on schools educational.

Article 9 of Royal Decree Law 21/2020, of June 9, obliges the holders of educational centers to comply with the “disinfection standards,

prevention and conditioning (…) are lost by the authorities, and, in any case, the adoption of the necessary organizational measures must be ensured to avoid agglomerations and guarantee that a safety distance of at least 1.5 meters is maintained . When it is not possible to maintain this safety distance, the appropriate hygiene measures will be observed to prevent the risks of contagion ”.

As a fundamental norm for the prevention of occupational risks in relation to this pandemic, there is the so-called “PROCEDURE OF ACTION FOR THE SERVICES FOR THE PREVENTION OF WORKPLACE RISKS AGAINST EXPOSURE TO SARS. COV-2 ”, prepared by the Ministry of Health, in June 2020, and which establishes a series of

norms for the protection of workers against risk, under the motto that “any protection measure must guarantee that it adequately protects the working personnel from those risks to their health or safety”, as well as that said measures will be adopted in each company based on of the “specific exposure risk assessment”. Among the protection measures contemplated in the document are those of an organizational nature (such as, for example, those conducive to minimizing contact between people), collective protection (physical separation barriers, for example), and personal protection ( masks, hydroalcoholic gel, etc.).

The optimal way to prevent transmission is to use a combination of all preventive measures, not just personal protective equipment (PPE). The information on PPE prepared by the National Institute for Occupational Safety and Health is included in Annexes II and III. Annex III presents alternatives and strategies for optimizing the use of masks, protective clothing and gloves.

Likewise, this important document regulates the procedure for the detection, notification, study and management of cases that may occur within the company in relation to COVID-19.

Educational centers must pay special attention to the document of the Ministry of Education and Professional Training called “MEASURES FOR PREVENTION, HYGIENE AND PROMOTION OF HEALTH AGAINST COVID-19 FOR EDUCATIONAL CENTERS IN THE COURSE 2020-2021”, which in its points 4 and 5, regulates some aspects of occupational risk prevention, such as the reorganization of the workplace, the reorganization of spaces, flexibility of working hours, coordination with the authorities, etc.

On the other hand, each Autonomous Community has implemented its own measures, and just to name a few, the Community of Madrid has published a document entitled “INSTRUCTIONS AND MEASURES TO BE IMPLEMENTED IN THE 2020/2021 COURSE FOR TEACHING STAFF AND OFFICIAL AND LABOR STAFF. ADMINISTRATION AND SERVICES IN THE NON-UNIVERSITY PUBLIC TEACHING CENTERS OF THE COMMUNITY OF MADRID ON THE REASON OF COVID-19 “, a very complete document, which lists the prevention measures to be adopted in relation to each professional category and the general ones for all staff.

Ultimately, these brief reflections aim to raise awareness among the heads of work centers in general, and those of educational centers in particular, about the importance of adopting as many prevention measures as possible, in order to minimize the possible requirement of surcharges for lack of security measures by labor and Social Security authorities.

Salvador Vivas Puig. Abogado.
Sánchez Cánovas Abogados.

Article published in Religión Digital on September 10, 2020.