Navigating the global liability defence agenda

Employer liability flowing from workers who suffer COVID-19 related ill health/death

In the aftermath of the COVID-19 pandemic, Denmark has seen a number of work-related injury claims where an employee claims to have contracted COVID-19 in the course of their employment.

Today, the Danish Labour Market Insurance (AES), who administer the Mandatory Workers Compensation Scheme in Denmark, has received more than 10,000 claims reports and recognised almost 2,000 of these as work related injuries due to COVID-19. Therefore, it is expected that Insurers will also see additional employer liability claims, as the pandemic continues and the long-term side effects appear.

However, the Danish Courts have not yet adjudicated any cases regarding employer liability in connection with an employee contracting COVID-19. This raises the question of whether an employer can become liable.

As a general rule, employer liability in Denmark is based on a relatively strict assessment of culpability.

First and foremost, an injury must have taken place in connection with an employee’s employment before employer liability can be established. In COVID-19 cases, this means that the employee must be able to prove that he or she has been exposed to the virus in relation with his/her work and that it is more likely than not that this exposure is the cause of the employee’s illness.

The AES has developed certain guidelines to be used when ascertaining when COVID-19 can be recognised as a work-related injury. The guidelines distinguish between 3 types of work where the risk of contracting COVID-19 is respectively great, lesser and small. The risk of contracting COVID-19 is great if the employee has a lot of contact with potential infected persons, such as social workers, doctors and nurses working in, for example, hospitals or nursing homes. This group accounts for more than half of all of the reported claims. The second group encompasses employees whose work includes a high degree of contact with other people but where this contact is more sporadic, for example, employees in supermarkets, teachers, bus drivers or prison officers. The last group, where the risk was small, are employees who have little daily contact with potentially infected persons as well as persons who have worked from home during the pandemic.

Though AES’s distinction does not have any formal significance when determining employer liability, it seems logical to make use of the same distinction when assessing liability of employers. Ipso facto, an employer’s degree of negligence does not need to be very high if the COVID-19-affected employee is a nurse or doctor at a hospital, as compared to a COVID-19-affected employee, who has worked from home during the pandemic.

Another factor that can play a role in an assessment of liability is the fact that the employer has a duty to ensure employees can perform their work in a safe working environment. Part of ensuring such an environment for the employees is to comply with guidelines set forth by authorities. In connection with the pandemic, the Danish Health Authority, the Danish Working Environment Authority and the Danish Patient Safety Authority provided guidelines for employers to ensure a safe work environment.

These guidelines were targeted at specific sectors and employed a distinction similar to the one that AES employed when assessing a work-related injury. As an example, the guidelines targeted at workers at hospitals and nursing homes were more comprehensive and included employers’ duties to ensure COVID-19-affected patients were identified and isolated, as well as to ensure all preventive safety measures were in place at all times. Meanwhile, the guidelines targeted at employees working in offices merely charge employers to ensure social distancing is maintained, provide hand sanitizer/hand washing facilities and prioritise cleaning.

Consequently, it seems probable that employers will be found liable for their employees contracting COVID-19 if employers have not complied with the authorities’ guidelines that are targeted at their specific sector. It is however important to remember that the employer’s negligence will have to be decided based on the guidelines that were in place at the time the employee was affected with COVID-19.

Today, all the guidelines prescribe that the employer must provide the employees with necessary protective equipment such as face masks/shields and disinfectants. However in the beginning of the pandemic, there was a shortage of face masks/shields and disinfectant even in some hospitals. In such cases, liability must be based on a very specific assessment, including what the employer actually did and tried to do.

Thus, it can be concluded that in Denmark an employer’s liability in relation to employees contracting COVID-19 is based on an assessment of culpability, where the specific employee’s risk of contracting COVID-19 in his/her work environment, as well as the employer’s compliance with the authorities’ guidelines, will be included as relevant factors.