Employer Liable for Damage Arising from “Long Covid”

An employer had to compensate a nurse for damage suffered by her as a result of a Covid-19 infection, contracted while at work, because the employer had failed to fulfilled its duty of care for safe working conditions.

In April 2020, a nurse became infected with the Covid-19 virus and was left with long-term complaints. She worked at a healthcare centre at a location for elderly people with dementia and/or some other disability. Prior to the infection, she had carried out a Covid-19 test from some residents without using personal protective equipment (PPE). Subsequently it was found that these residents were infected with the Covid-19 virus. Pending the results of the Covid-19 test, the residents had not been quarantined and had been allowed to move freely in areas where staff did not wear any PPE’s.
The nurse held the healthcare centre liable for the damage she suffered as a result of the Covid-19 infection. She invoked a legal provision that imposes a duty of care on the employer to ensure safe working conditions. Under this provision, the employer should take all reasonable measures necessary to prevent an employee from suffering damage in the performance of his/her duties, and the employer is held liable for any damage that the employee claims to have suffered in the performance of his/her duties, unless the employer can demonstrate that he/she has fulfilled its duty of care or that the damage largely results from intent or wilful recklessness on the part of the employee.
The employer and is insurer disputed, however, that the employee had contracted the Covid-19 infection while at work and that the employer had violated its duty of care.

When the Sub-district Court had to rule on the case, it stated first and foremost that the law does not require one hundred percent certainty that the Covid-19 infection has been contracted while at work. A reasonable degree of certainty will suffice. It was certain that the employee had been exposed to the Covid-19 virus while being at work. It was impossible for her to perform her work while observing a distance of one and a half meters and she had not worn PPE’s such as a face mask and gloves. Based on what the employee had undisputedly stated about her private activities and in view of the fact that public life had come to a complete standstill in April 2020 as a result of the first (the “intelligent”) lockdown, it had sufficiently been demonstrated, according to the Sub-district Court, that the employee had contracted the Covid-19 infection while at work.

With regard to compliance with the duty of care, the employer pointed out:
that already prior to the start of the Covid-19 pandemic, there had been an infection prevention committee, that, after the start of the Covid-19 crisis, a Covid-19 steering group had been set up, which had translated the government (RIVM, Outbreak Management Team’s) guidelines into work instructions and that the healthcare centre had a reasonable quantity of PPE’s.
On the basis of the government guidelines, initially taking the then prevailing scarcity of PPE’s into account, a step-by-step plan had been drawn up to determine whether and when PPE’s should or could be used. In April 2020, precautionary use of these PPE’s was considered undesirable due to the then existing shortage. The employer's work instructions stated that PPE’s could only be used after a physician had diagnosed a suspected Covid-19 virus infection.
In defence, the employer argued that, until a physician had decided on the existence of a Covid-19 infection, the employee should have determined on the basis of her own care experience whether wearing PPE’s would be necessary. The Sub-district Court, however, disagreed with this argument. If this really had been the case, the employer should have given clearer instructions.
The shortage of PPE’s implied that the employee had to comply with the applicable guidelines. In addition, the employee had -unsuccessfully- repeatedly asked permission to wear PPE’s in the communal areas.
Therefore, the Sub-district Court held the opinion that the employer had not fulfilled her duty of care. Since there was no question of intent or deliberate recklessness on the part of the employee either, the employer was liable for the damage suffered by the employee, which was arisen from the Covid-19 virus infection.

Previously, many calls have been made to draw up a separate scheme for compensation for damage suffered by employees who have been infected with the Covid-19 virus while at work as a result of the long-term consequences of this infection. Whilst there is every reason to express sympathy for the healthcare workers who had to do their work during the Covid-19 pandemic under difficult and dangerous circumstances, even for them personally, in strictly legal terms there is little reason for such a separate scheme.
Under the existing legislation, adequate legal means are available for employees to enable compensation for damages resulting from a Covid-19 infection at work.
The allocation of the burden of proof in cases where employees claim compensation for the damage they claim to have suffered while at work as a result of unsafe working conditions entails that there are good opportunities for these employees to claim compensation.
The above judgment of the Sub-district Court shows it.