06-04-2020  | Update Employment Law June 2020

Accidents while on home office




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Due to the current corona pandemic, many employers are enabling their employees to work from home. But what if the employee has an accident while working from home? In the event of accidents at the workplace, the statutory accident insurance generally applies. Is this also the case when working from home?

When does the statutory accident insurance kick in?

As far as an employee suffers from an accident during or in connection with his or her employment, the statutory accident insurance pursuant to Section 2 subsection. 1 no. 1 SGB VII (German Social Code, Book VII) shall apply, provided that there is an internal connection between the activity actually carried out and the insured activity.

The decisive factor is whether the employee (according to the objective circumstances of the individual case) intended to perform an activity serving the company (so-called "objective action tendency of the insured person", BSG 05.07.2016, B 2 U 5/15 R).

The statutory accident insurance therefore covers accidents occurring during work (while performing the insured activity itself) as well as accidents occurring on operational routes within the company (made while performing the insured activity) or on the way to work (accidents occurring on the way from home to the workplace).

What applies if the employee has an accident while on home office?

It is decisive for the statutory accident insurance protection while on home office, which concrete activity with which purpose the employee was carrying out at the time of the accident.

Unlike an activity at the workplace, where insurance cover is regularly provided by the statutory accident insurance, it may easily be the case that the insurance does not cover an accident occurred while on home office due to the typical mixture of business and private activities. After all, it is not the employer but the insured person who has to bear the risks inherent in a private home.

Consequently, the distinction must be made according to whether the actual work was an activity serving the company or was carried out in a self-employed capacity and can therefore be assigned to the private sphere.

According to the case law, for example, eating and going to the toilet while on home office cannot be considered to be part of the activity serving the company (SG München 04.07.2009, S 40 U 227/18; BSG 27.04.2010, B 2 U 23/09 R; BSG 02.12.2008, B 2 U 17/07 R). The same applies if the employee is exposed to a privately motivated attack (burglary) while on home office (SG Dresden 08.05.2013, p 5 U 293/12).

Operational routes while on home office?

If - as it will typically be the case while on home office - the home and workplace are in the same building, then there may exceptionally also be a operational route in the domestic area.

This requires that the employee has made the "trip" while carrying out the insured activity, i.e. in the direct interest of the company (BSG 05.07.2016, B 2 U 5/15 R). Such a direct business interest does not already result from the fact that the employee is dependent on using the route in question, for example a staircase, in order to be able to pursue his employment at all, but exclusively from the fact that the employee (according to the objective circumstances of the individual case) wanted to pursue an activity serving the company at the time of the accident.

According to case law, this can be assumed to be the case, for example, if the employee falls while on the way to his workplace at home (e.g. from the kitchen to the study) to make a business call (BSG 27.11.2018, B 2 U 28/17; BSG 31.08.2017, B 2 U 9/16 R).

On the other hand, the insurance cover must be denied if the employee moves to pursue an activity of his own (such as drinking or eating, private reception of packages or going to the toilet) (BSG 05.07.2016, B 2 U 5/15 R).

Accidents occurring on the way from home to the workplace while on home office?

According to Section 8, subsection 2, Nos. 1-4 of the German Social Security Code (SGB VII), accidents on the way to and from work can only be considered after passing through the outer door of the building in which the employee's home is located ("decisive break").

For employees generally working at the workplace (full-time), the Federal Social Court has decided that trips made during breaks (in particular during the lunch break) to a place other than the place of work for the purpose of eating or purchasing food for immediate consumption at the workplace may also be subject to work-related accident insurance cover (BSG 27.04.2010, B 2 U 23/09 R; BSG 02.12.2008, B 2 U 17/07 R).

According to the Federal Social Court, the intended consumption or purchase of food during working hours - unlike the purchase or consumption before the start of work - serves to maintain the ability to work and eventually to continue the business activity.

An employee working full-time while on home office can also travel outside the home during working hours, e.g. during his lunch break. With regard to the case law of the Federal Social Court, it must therefore be assumed that the distances associated with the daily lunch break are covered by the insurance cover pursuant to Section 8 subsection 2 no. 1 SGB VII (German Social Code, Book VII), other "trips made at the employee's discretion from his place of residence and the home office set up there for the purpose of eating or shopping", however, are not included. Otherwise, the employee's feeling of hunger at any given time could lead to "round-the-clock" insurance cover (BSG 18.06.2013, B 2 U 7/12 R).

Similar considerations should be made when bringing the children to a day care facility/nanny. Pursuant to Section 8 subsection 2 no. 2 a) of the Social Code VII, the insured activities also include trips that deviate from a direct route to and from the place of work in order to entrust the children of insured persons who live with them in a joint household to the care of others (including a day care centre or nanny) because of their professional activities or the professional activities of their spouses or partners.

Although the interests seem comparable here, case law expressly denies insurance cover when a child is brought from home to day care by an employee working on home office (BSG 30.01.2020, B 2 U 19/18). In spite of the comparable interests, the extension of the insurance cover is to be denied by way of analogy, since Section 8 subsection 2 No. 2a SGB (German Social Code, Book VII), however, leaves no room for the assumption of an unplanned gap in the regulations.

Conclusion

Employees working at home are covered by the insurance in many cases. However, in spite of the principles developed by case law, the classification of an activity as an insured activity remains highly dependent on the individual case and is not conclusively clarified by case law, particularly with regard to accidents occurring on the way to the workplace while on home office. The employee bears the burden of proof as to whether a work-related accident has occurred. It is advisable for the employee to conclude a private accident insurance. As far as the employer arranges such an insurance for the employee, it is a monetary benefit which must be taxed accordingly.

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