Update Employment Law March 2023

Work Break in the smoking area may be subject to accident insurance (Unfallversicherung) as an occupational accident (Arbeitsunfall)

Where does the spatio-temporal environment of specific operational hazards end and where does "self-efficiency" begin? The Regional Social Court of Baden-Württemberg ("LSG") had to deal with this in a decision from February 2023 and decided that a specific occupational hazard can also materialize during the stay in the smoking area, which is subject to accident insurance coverage (see LSG Baden-Württemberg, verdict dated on February 27, 2023 – file number L 1 U 2032/22).

Accidents at work are only covered by accident insurance if the accident occurs in the temporal and material context of the employee's work performance. So-called self-serving activities that only serve the employee are not covered.

Facts of the case

The decision was - briefly described - based on the following facts:

The plaintiff was employed as a fitter by his employer. In the course of this work, there were occasional periods of idle time. During these periods, the plaintiff was allowed to leave his workplace and be ready for assignments on the employer's premises.

On one day in January 2021, the plaintiff, who does not smoke himself, went to the outdoor area of the company premises and sought out the "smoking island" there to keep company with a colleague who was smoking there.

While the plaintiff was talking to the colleague, he was hit by a forklift loaded with a mesh box. As a result, the plaintiff went down and sustained several fractures that required surgical treatment.

The exact circumstances of the accident remained unclear at trial. The employer and the plaintiff put forward different courses of events.

Decision of the LSG Baden-Württemberg

The LSG ruled that the plaintiff had suffered an accident at work, which was covered by accident insurance. At the time of the accident, the plaintiff was not engaged in any activity that could be directly attributed to an insured activity, but there was a specific context of danger that could be attributed to the insured activity.

The LSG takes an evaluative view, according to which a risk arises from the sphere of the insured activity and is therefore attributable to it. Thus, insurance coverage is not completely excluded in the case of self-sufficient activities. In particular, a "special operating risk" can also arise in the course of business activities. Such special operational hazards can arise, for example, from operational equipment such as buildings and machines.

The insurance protection then results from the meaning and purpose of the accident insurance, which is to insure the employee against operational hazards to which the employees are exposed due to their employment.

Thus, the forklift represents an objectively dangerous piece of operating equipment, the use of which is a "special operating hazard." On its website, the German Social Accident Insurance also assumes a high risk potential of forklifts. According to this, the danger of forklifts is increased and proven in comparison to general road traffic and is also the subject of special accident prevention regulations.

There was also a close temporal and spatial connection with the plaintiff's insured activity when he was on the smoking island. The plaintiff had taken a break at a place specifically set up for this purpose. He could then also rely on the fact that the designated break location was safe and that all operational hazards had been eliminated there. The break had also been necessary precisely because of the insured activity, so that there was a sufficient link between the insured activity and the accident. Continued work was favoured by the mental and physical recovery.

Practical advice

Does the decision mean that all activities performed by employees on company premises are now protected by accident insurance? No!

The LSG draws a comparison to the break times in the break room for food intake, which are insured according to the verdicts of the Federal Social Court (see verdict dated on January 1, 1976 – file number 2 RU 101/75) and points out in the verdict itself that there are of course still limits to insurance protection. The LSG only attributed the actually self-economic activity of "grabbing air" to the insured activity because the break serves to maintain the working capacity and was performed in a break area specially provided for this purpose.

Accordingly, purely self-serving activities without "recreational reference" are not subject to the protection of the accident insurance (for example, when an employee jacked up the private car on the lifting platform of the employer to perform a check). Also, such actions, which are self-economical by a clear caesura, are not subject to the insurance protection of the accident insurance. For example, an employee who suffered injuries after a scuffle due to a parked factory entrance tried to claim this as an occupational accident, which the social court Berlin rejected (see verdict dated on February 16, 2023 – file number S 98 U 50/21).

The LSG has allowed the appeal to the Federal Social Court, since it has not yet been clarified by the highest court whether insurance protection only exists at the workplace or also far away from it if the employee takes a permissible break. In this respect, it remains to be seen whether the extension of insurance coverage will be "upheld" by the Federal Social Court.

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