06-30-2021  | Update Employment Law July 2021

No insurance coverage in case of fall on the way to work in home office




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Regional Social Court (Landessozialgericht) North Rhine-Westphalia, judgment of 09.11.2020 - L 17 U 487/19

The route taken by an employee on the way to starting work in the home office is not covered by statutory accident insurance neither as a way to work nor as a operating way.

Facts

The plaintiff was employed as a sales representative, subject to compulsory insurance and worked regularly in his home office. One morning, the plaintiff fell on the stairs inside his home on his way from his private living quarters to his (first) start of work. In the process, he suffered a fractured thoracic vertebra.

The defendant employers' liability insurance association refused to grant compensation benefits from the statutory accident insurance. The plaintiff brought an action against this decision at social court (Sozialgericht) Aachen. The social court Aachen allowed the action. The regional social court (Landessozialgericht) North Rhine-Westphalia reversed the decision of the social court and rejected the action. 

Decision of the regional social court North Rhine-Westphalia

In the view of the regional social court North Rhine-Westphalia, the conditions for an occupational accident were not met. In addition to accidents during the performance of the insured activity, the statutory accident insurance also covers accidents on the occasion of 

  • Operating ways: Ways made in the course of the insured activity.

The statutory accident insurance also covers 

  • Work-related way accidents: Accidents that occur on the direct way from home to work. 

In the view of the regional social court North Rhine-Westphalia, the way taken by the plaintiff was neither insured as a way to work , nor was it to be regarded as an insured operating way. 

No work-related way accident

According to the established case law of the federal social court (Bundessozialgericht), which the regional social court North Rhine-Westphalia followed, the insured activity on the way to the place of work only begins when the insured person passes through the front door of the building in which his or her home is located. Consequently, an employee in a home office can never be insured for a work-related way accident within the house or within the apartment on the way to the place of work.

No operating way

In the view of the regional social court North Rhine-Westphalia, the employee had also not covered an insured way to work at the time of the accident when he descended the stairs to start work at his home office for the first time. It is undisputed that the limit for work-related way accidents, which states that the insured person must have passed the front door of the building his or her home is located in order to be covered by insurance, does not apply to operating ways if both the home and the workplace of the insured person are located in the same building. In the present case, however, the existance of a operating way was not possible because at the time of the accident the employee was on the way to his office to start his insured work for the first time on the day of the accident. Operating ways are only ways made in the course of the insured work, but not preparatory acts for the initial start of the insured work.

An appeal against this decision of the reginal social court North Rhine-Westphalia was allowed on the basis of fundamental importance. This is currently pending at the federal social court under Case No. B 2 U 4/21.

Changes in accident insurance coverage due to the entry into force of the „Betriebsrätemodernisierungsgesetz“ 

As a result of the „Betriebsrätemodernisierungsgesetz“ , which came into force on June 18, 2021, accident insurance coverage in the home office will be equal to the accident insurance coverage in the office. In addition, the accident insurance coverage of home office workers will be extended to the direct routes they take to care for their children outside the home due to their work. 

The present case would probably not be decided differently even after the new legal regulation. According to this, insurance coverage exists in the home office to the same extent as when providing work at the office. If an employee provides his or her work at the office, the insured activity does not begin until the employee passes through the front door of the building in which his or her home is located.. If the way to  start work in the home office within the private  space were covered by the statutory accident insurance, this would not result in equality, but rather in a better position for employees working in the home office.

Conclusion

In principle, employees working at home office enjoy the coverage of the statutory accident insurance, but the deceite is in the details. This is because the categorization of an activity as an insured activity is dependent on the individual case and has not yet been conclusively clarified by case law, particularly with regard to work-related accidents. It is still absolutely necessary to consider each individual case, even after the „Betriebsrätemodernisierungsgesetz“ has come into force.

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