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07.03.2022

Misstep on the spiral staircase at home is considered an occupational accident

Whether in the home office, on the balcony or at the kitchen table - the home office preferences of employees are different. Since the decision of the Federal Social Court of 8 December 2021 (case number B 2 U 4/21), they have one thing in common - if you fall in the morning on your way there for the first time, it is an occupational accident.

Previous case law of the BSG

As recently as 2016, the Federal Social Court was of the opinion that an employee did not enjoy accident insurance protection if he went from his home workplace to the kitchen to drink a glass of water. In such a case, the journey was not usually a business trip, but a typical business activity. The risks inherent in the private home were the responsibility of the insured person. Accident insurance cover in the home office required that the accident had a material connection with the employment relationship.

The then plaintiff worked in a separate room in the attic of her flat at a telework station. She left the work room to fetch water in the kitchen, which was one floor below. In doing so, she slipped on the stairs leading to the ground floor and injured herself. The defendant accident insurance fund denied the existence of an occupational accident. The case finally ended up before the Federal Social Court, which confirmed the assessment of the accident insurance fund. The plaintiff had not been on her way to work at the time of the accident. She had slipped on the way from the workplace to the kitchen and thus in her personal living space. She had not travelled this route in order to carry out her insured occupation, but to fetch water to drink. She was thus engaged in a typical, uninsured activity of her own. The risks inherent in the private home were also not the responsibility of the employer, but of the insured person himself. It was hardly possible for the statutory accident insurance institutions to take preventive, risk-reducing measures outside the premises of their members (the employers). Therefore, it was appropriate to attribute the accident risk emanating from the domestic and thus personal sphere of life to the insured persons and not to the statutory accident insurance, which was intended to replace the employer's liability.

Latest decision of the BSG - Falling down stairs in the home office was an occupational accident

In 2016, the Federal Social Court still assessed the risk distribution of home office hazards at the expense of employees. In its most recent decision on accident insurance coverage, the judges in Kassel ruled in favour of the plaintiff. So anyone who is on their way from bed to the home office in their own four walls for the first time in the morning and falls in the process is protected by the statutory accident insurance.

In the case at hand, the plaintiff left his bed at shortly after 7 a.m. to go from his bedroom to his home study. The study was located on the lower floor, both floors were connected by a spiral staircase. Usually, the employee starts his work in the morning without having breakfast beforehand. The plaintiff slipped on the spiral staircase, fell and sustained an injury to his thoracic vertebra. The defendant accident insurance fund denied the existence of an occupational accident. It held that there was no occupational accident because the fall had occurred in the domestic sphere and thus not on an insured route. The lower courts disagreed. While the Social Court of Aachen affirmed an occupational accident on the way to work, the Regional Social Court of North Rhine-Westphalia only assumed an uninsured preparatory act for the actual activity. The Federal Social Court confirmed the first instance decision and found that the plaintiff had suffered an occupational accident when he fell on the way to his home office in the morning. Taking the stairs to the home office had only served to start work for the first time and was therefore insured as a commute in the interest of the employer.

Rectification of the legal regulations - adaptation of § 8 SGB VII

It is clear that an employee enjoys full accident protection at the workplace, regardless of whether he or she goes to the toilet, to a colleague's office or to the coffee kitchen. For activities at home, there has been a complete lack of legal regulations. In addition, it was previously crucial for the insured journey to the daycare centre that the places of private residence and the insured activity, between which the journey was made, were physically separate. Anyone who brought their child from home to childcare in order to then work in their home office was not insured on this route.

The legislator has reacted to the wave of home offices caused by the pandemic and improved accident insurance protection in favour of employees. To this end, it enacted the Betriebsrätemodernisierungsgesetz (Works Council Modernisation Act) in June 2021, which included a home office-friendly amendment to § 8 SGB VII. The aim of the new regulation was to ensure that insurance cover for journeys within the company and journeys within one's own four walls would run concurrently:

It is now stated in § 8 para. 1 sentence 3 SGB VII:

 "If the insured activity is carried out in the insured person's household or at another location, insurance cover is provided to the same extent as if the activity were carried out at the place of business."

In addition, the legislator has explicitly extended accident insurance coverage to the route between the home office and a childcare facility. According to § 8 para. 2 no. 2a SGB VII, the insured activity now also includes:

"travelling directly to and from the place where children of insured persons referred to in point 2(a) are entrusted to the care of others, if the insured activity is carried out at the place where the household is shared".

Classification and conclusion

The latest case law of the Federal Social Court on accident insurance coverage is of high practical relevance in view of the pandemic and the general change in the world of work and is therefore welcome. The legal extension of accident insurance coverage to the home office also seems only consistent. It is noteworthy that the federal judges in Kassel still made their decision on the basis of the previous legal situation and not on the basis of the newly formulated § 8 SGB VII. Against this background, it remains to be seen how the courts will evaluate various accident scenarios on the basis of the new legal situation and interpret the constituent element "at another place" in § 8 para. 1 sentence 3 SGB. It should come as little surprise if the courts consider a trip to the kitchen at home for a drink or to the toilet to be covered. However, it remains more exciting with various conceivable variants of accidents during mobile work, i.e. without a fixed spatial reference point (for example in a café or while travelling).

Authors

Denise Schwarz

Denise Schwarz

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