Apr
17
France – French labour law - Covid 19: work accident (accident du travail) or occupational disease (maladie professionnelle) ?

Coverage for an accident at work or an occupational disease entitles you to increased compensation, particularly with regard to the amount of the higher daily social security benefits, but also, where applicable, the pension or capital paid in the event of permanent incapacity, as well as 100% coverage of medical costs.

In this regard, in a press release dated April 6th, 2020, the Academy of Medicine recommended treatment under professional legislation of the disease caused by COVID 19 for employees in the medical sector but also those in the food sector security and transportation.

What has happened to date, taking into account the legislative and jurisprudential provisions, of the possibility of having the occupational nature of the disease caused by COVID 19 recognized?

1) Covid 19 and work accident

1.1) Definition and criteria of the industrial accident

Accident at work is defined by the Social Security Code in the following terms: “An accident at work, regardless of the cause, is considered to be an accident that occurs as a result of or during work at any employee or worker, in any capacity or in any place whatsoever, for one or more employers or business managers. "(Article L.411-1 of the Social Security Code)

Jurisprudence also requires that be characterized: "the occurrence of a sudden event at work time and place". (Cass, soc, June 18, 2015, n ° 14-17.691)

Also, for the accident at work to be recognized, the Court of Cassation requires that proof of one or more sudden events be brought that it is possible to identify precisely in time, which seems to exclude that contamination by a infectious disease can be classified as an occupational accident.

It was in this sense that the plenary assembly ruled in a judgment of March 21, 1969 concerning a doctor who had contracted poliomyelitis in the exercise of his functions, holding that: "mere contagion could not be assimilated trauma. " (Ass, Plé 21 March 1969) n ° 66-11.181)

Then, the accidental fact must necessarily cause an injury, whether immediate or deferred.

For example, the Court of Cassation may have considered that the illness which arose following the vaccination imposed by the employer constituted an accident at work, since nevertheless the link between the pathology observed and the vaccination was medically recognized (Cass 2nd civ., March 22, 2005, n ° 03-30.551)

Last but not least, there must be a link between the accident and the job.

1.2) Accident at work and contamination by COVID 19

Recall that the coronavirus is transmitted by droplets (invisible and projected during a discussion, sneezing or coughing) and by contact via unwashed hands on which the virus can be deposited and which is then brought to his face.

Also, the requirement for a precise and sudden accidental event makes it a priori difficult to qualify COVID 19 contamination as an occupational accident, due to the difficulty of identifying precisely the origin of the contamination.

Nevertheless, the employer, as part of his obligation of safety prevention is required to follow the recommendations of the government to protect employees from the risk of infection, which include the need to inform other employees if one of between them contracts the disease.

Also, if the rules decreed by the government relating to barrier actions have not been implemented by the employer or especially, if the employee has been in contact with one of his sick colleagues, then it may be possible to identify the origin of the lesion more precisely.

It should also be noted that proof of contamination in the workplace can be more easily done during the confinement period when the possibilities of contamination outside the workplace are much more limited. This is all the more so if it can be established that no one has contracted the virus in the private circle of the employee.

1.3) Presumption of accountability and declaration of an industrial accident (accident du travail)

Article L.411-1 of the Safety Code lays down a presumption of the responsibility for the accident at work as soon as the accident occurred by the fact or during the work.

This means that it is then up to the employer to establish that the accident has a cause unrelated to the workplace.

However, for the presumption to apply, the employee must first establish the reality of the injury as well as its occurrence at time and place of work, which proves to be difficult with regard to contamination by COVID 19.

This is the reason why employees declaring an industrial accident are advised to establish as much as possible that the contamination has occurred during working time.

The first step is to produce the medical certificate confirming the diagnosis and the results of the screening test if applicable.

It will then be necessary to establish and describe the working conditions that allowed the contamination (for example due to the lack of respect for the rules of distance and barrier gestures, promiscuity in the workplace, prolonged and close contact with the clientele or with a colleague in the contamination has been proven, the lack of personal protection or available sanitary equipment ...).

2) Covid and occupational disease (maladie professionnelle)

An illness can be recognized as professional in three hypotheses:

1) The disease is already listed in one of the tables of occupational diseases (tables appearing in the appendix to the Social Security Code which list the description of the disease, the period of treatment, work likely to cause the disease and sometimes the duration of exposure to the risk);

2) If the conditions required by the table are not met, the illness must be directly caused by usual work;

3) If the disease is not listed in one of the tables, it must be the consequence of an illness directly caused by work resulting in permanent disability at a rate of 25%.

In the last two hypotheses, it is the Regional Committee for the Recognition of Occupational Diseases (CRRMP), which decides, after investigation, on the occupational nature of the disease.

Regarding COVID 19, since the disease does not appear in any of the tables for the time being, the only avenue open remains recognition by the CRRMP.

But here again this recognition supposes that the proof is established that the coronavirus was contracted during the work.

In addition to increased compensation, the issue of qualification as an occupational disease or an industrial accident lies in the possibility of acting in inexcusable fault on the part of the employer.

This action is only open on condition that the professional nature has been retained, and that the employer had or would have had to be aware of the danger to which the employee was exposed and that he did not take the measures necessary to preserve it.

To carry out such an action, the work carried out by the personnel representatives within the company (for example within the framework of the right of alert for serious and imminent danger, or even investigations carried out) will be essential to establish a possible fault inexcusable.

Also if no answer is certain to date on the management of the disease under professional legislation, it is nevertheless highly likely that this recognition is made by sector of activity within which the professional origin will appear obvious, such as the medical sector (which has already been promised by the Minister of Health for carers) but also possibly the sectors of essential activities and very exposed to risk maintained during confinement.

For the rest, investigations will be carried out by French Social Security on a case-by-case basis, and it will be for the judges to decide.

Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)

Mathilde MERMET–GUYENNET avocat

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com

www.chhum-avocats.fr

https://www.instagram.com/fredericchhum/?hl=fr

.Paris: 4 rue Bayard 75008 Paris tel: 0142560300

.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644

.Lille: 25, rue Gounod 59000 Lille tel: 0320135083

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