The Federal Social Court (BSG) remains faithful to its course and strengthens with its decision from 30 January 2020 (Az.: B 2 U 19/18 R) its past restrictive jurisdiction to (missing) accident insurance protection in the home office. Just as little as the way to the toilet or to the food intake the way from the home office to the kindergarten is insured.
The parties disputed whether the defendant accident insurance carrier must refund to the complaining health insurance company treatment costs, which it had to spend for an accident of an employee. The employee, who has statutory health-insured with the plaintiff, worked in her home office. On the day of the accident, she took her five-year-old daughter to kindergarten in the morning, in order to then pursue her occupation in the home office. On the way back from kindergarten she fell and broke her right elbow joint. The complaining health insurance company demanded reimbursement of the treatment costs from the defendant accident insurance carrier. The Social Court and the State Social Court rejected the complaint. The BSG also rejected the appeal of the plaintiff health insurance companies.
According to § 8 Para. 2 No. 2a) German Social Security Code VII (SGB VII), the insured activities also include travelling the route deviating from a direct route to and from the place of activity in order to entrust children of insured persons who live with them in a common household to the care of others (including a day care centre or childminder) due to their professional activities or the professional activities of their spouses or life partners. Even before the decision of the BSG, a direct application of this standard to insured persons whose workplace is set up in the home office was excluded. An insured path presupposes that the places of private residence and place of work are physically separate. However, an analogous application of the standard was considered.
The BSG has now clarified this conclusively and denied a further development of the law by analogy. The legislator had consciously and finally hit the norm, so that there was a lack of a regulation gap that was contrary to plan. Taking children to a day care center from the home office and back does not constitute an insured commute to work under any conceivable aspect.
The distinction between insured and uninsured activity in the home office is not easy to draw. The following example is provided by the Employer's Liability Insurance Association: If an insured person falls down the stairs and injures himself because he wants to check the interrupted Internet connection on the first floor, which he needs for business communication, this accident would be insured. If, on the other hand, the person falls down the stairs because he wants to receive a private parcel, this would not be covered. This is because self-employed - i.e. private - activities (including those in the office) are generally not covered by statutory accident insurance. According to the jurisdiction of the BSG, self-economic interests include the way to the toilet, the refrigerator and now also to the kindergarten. These ways are not legally insured against accidents at home.
Due to the current corona crisis, many employers are enabling their employees to work from home. Therefore, the extension of accident insurance protection for work in a home office is desirable, but requires a change in the law.