Telework and the Act on Work Accidents finally reconciled

A work accident is "any accident that occurs to a worker in the course of and as a result of the performance of the employment contract and that causes an injury".

For a long time, the application of the Act on Work Accidents to teleworkers was characterised by a lack of clarity. What happens if, for example, a teleworker falls down the stairs of his or her home and suffers an injury?

By the Act of 21 December 2018 containing various provisions relating to social affairs (B.M. of 17 January 2019), the legislator has filled these gaps.

Telework is expressly included in the scope of the Act on Work Accident

First, the scope of the Act on Work Accidents is expressly extended to telework, both structurally and occasionally.

Telework is structural when people work from home on a regular, rather than occasional, basis (e. g. every Wednesday and Friday afternoon). Telework, on the other hand, is occasional when, for unforeseen reasons (e. g. train strikes) or personal reasons (e. g. doctor's appointments), people work occasionally, and not regularly, from home.

Extension of the presumption regarding work accidents

The Act on Work Accidents provides a presumption whereby an accident that occurs during the performance of the employment contract, unless proven otherwise, is deemed to have occurred as a result of the performance of the employment contract.

The application of this presumption to teleworkers is problematic, as it is difficult for them to prove that an accident occurred during the performance of their employment contract and not during their free time.

To remedy this, the legislator already introduced in 2009 a presumption in favour of the teleworker, whereby the accident that occurred to the teleworker is, unless proven otherwise, deemed to have occurred during the performance of the employment contract:

  • When the accident occurs at the place or places chosen in writing by the latter as the place where he or she performs his or her work;
  • When the accident occurs during the period of the day which is mentioned in writing as the period during which the work can be performed. In the absence of such a reference in the written agreement, the presumption applies during the hours of work that the teleworker would have performed if he or she were employed on the employer's premises.

However, in the case of occasional telework, there may be no written agreement specifying the place of telework.

In order to fill this gap, the Act on Work Accidents now provides that "in writing" means a telework contract or any other document allowing telework, generic or ad hoc, collective or individual.  An e-mail in which the employer agrees that the employee may work at home one day due to a plumber's visit is therefore sufficient.

If the place(s) has (have) not been mentioned, the presumption will now also apply to the place(s) of residence or place(s) where telework is usually performed.

Elimination of discrimination for work accidents on the road

In accordance with the Act on Work Accidents, accidents that occur on the route to or from work are also considered work accidents.

The route to or from work is considered to be the normal route a worker has to take to go from home to the workplace and the other way around. Is still considered being part of the normal route, the necessary and reasonable justifiable detours the workers makes in order to take or pick up his children at the daycare center or school.

Furthermore, inter alia, the route from the workplace to the place where the worker eats or buys a meal (and vice versa) is assimilated with the route to and from work.

Since the vast majority of teleworkers work from home, they do not travel to and from the workplace and therefore cannot be victims of a work accident on the road. Nevertheless, they have the same family obligations as workers that work on the company’s premises and must also satisfy their hunger.

The legislator has now put an end to this difference in treatment: the route a teleworker takes from home to his children's school or daycare center or to the place where he eats or buys his meal is now assimilated with the route to or form work.

These amendments come into force on January 27, 2019.

 

 

Published in: Legal insights