Can an employee claim compensation in case of COVID-19 infection at the workplace?
Under the new regulation, which entered into force on 2 December, workers are required to wear a mask in workplaces if there is more than one person in the room, unless the employer decides otherwise.
Previous regulations required the wearing of masks by employees who have direct contact with the customer, or when it is impossible to maintain an adequate distance between employees. From Saturday 28 November, a provision of the Regulation entered into force according to which, until 27 December this year, the obligation to cover, by means of clothing or parts thereof, a mask, mask, helmet or protective helmet, in public places, including workplaces, where there is more than one person in the room. The employer may punish the employee for not complying with the obligation to wear a mask, although this is not provided for in the Regulation.
The provision does not restrict general accessibility to employees only, so it is logical that the obligation applies not only to workersbut also to bystanders. Therefore, any restriction on access by persons outside the workplace means that we are no longer dealing with a public place. The prohibition therefore does not apply to social housing for workers, employee canteens, restricted offices, etc. – explains Wojciech Bigaj, legal counsel and partner at Baran Książe Bigaj, in an interview with Newseria Biznes.
As the regulation raised many doubts for lawyers and employers themselves, another regulation entered into force on 2 December. According to it, the employer may waive the obligation to protect the nose and mouth. However, changes to the rules do not exempt employers from the obligation to ensure safe and hygienic working conditions and workers from being obliged to comply with them.
The provision of Article 209 with the stamp 2 of the Labour Code states that the employer is obliged to provide these safe conditions to employees in the event of a threat to life and health. The Labour Code provides for a penalty of reprimand, reprimand or fine, which may be imposed in the event of a breach of m.in. health and safety regulations or rules. This fine is not too burdensome, as it cannot exceed the employee’s day’s salary for a single offence.
The preservation of all safety rules at work is so important that the worker could, in the event of serious deficiencies on the part of the employer, claim compensation in the event of a coronavirus infection in the workplace.
The provisions of labour law do not explicitly provide for compensation for employees. If there were such a situation that, in connection with employment with the employer concerned, the employee would become infected with the virus, he remains to bring an action under the provisions of the Civil Code. Article 415(k.c. provides that if someone has caused guilt to another person by his or her actions, he or she must rectify it. On the other hand, it is so problematic for an employee that he or she has to prove the employer’s guilt in such conduct, which can be very difficult during a pandemic. Alternatively, proceedings related to the infringement of the employee’s personal rights could be considered as a result of actions taken by employers, such as the introduction of an obligation for employees to carry out tests on SARS-CoV-2.