Once again, the Federal Social Court (Bundessozialgericht, BSG; Judgment of 11/27/2018 - B 2 U 28/17 R) had to deal with the question of whether a fall of an employee working from home was an accident at work under the law. As usual, the focus was on the home staircase and the decision as to whether the descending of stairs was covered under the statutory occupational accident insurance.
An employee worked mainly from a home office, which she has set up in the basement of her house. As she walked down the basement stairs (with her laptop under her arm) to her home office, she slipped and injured herself. The worker wanted to go to her home office to make a prearranged phone call with her supervisor using her laptop.
Judgment of the BSG of 11/27/2018 – B 2 U 28/17 R
The BSG confirmed in its ruling that this was an accident at work, as the employee was on an insured work-related path at the time of the accident. Work-related paths are paths taken to carry out the insured work activity. They are undertaken to pursue an activity directly serving the company. This was accepted by the BSG in this case as the telephone conversation between the employee and her supervisor was one of her duties, which was in the company's interest.
Previous case law
This decision falls in line with other case law of the BSG. It is true that in its earlier case law, it referred to the frequency of use of the concrete accident site when establishing work-related path within a private home. In its judgment of 07/05/2016 (Ref B 2 U 5/15 R), the BSG has already expressed doubts as to as to whether this view should be upheld. In its judgment of 08/31/2017 (Ref. B 2 U 9/16), the BSG then clarified its position as follows:
In future, it will no longer be necessary to focus on the frequency of the »work-related« use of the specific accident site. Whether a path is taken in the direct interest of the company and is, therefore, objectively connected with the insured activity is determined rather by the objective »tendency of the action« of the insured person – i.e. by whether the insured person wanted to carry out an activity to serve the company when the accident occurred and the tendency to this action is confirmed by the objective circumstances of the individual case. The decisive factor is therefore, the concrete action the employee took at the time of the accident and for what purpose.
It, therefore, remains the case that if the employee leaves the home office to drink some water in the kitchen, which is located one floor below, and falls down the stairs, they would have slipped in the private area of the house (see our post from July 2016). This does not qualify as an accident at work.
Does this inject clarity into all incidents involving »falls from stairs« in the home office?
The facts underlying the recent positive decision of BSG included the objective tendency of the action of the employee and thus the assumption that she wanted to carry out activities serving the company (prearranged telephone call and laptop under her arm). However, in most cases, it will be difficult to determine whether the employee went down the stairs in a private or professional capacity. The entire circumstances of the individual case (e.g. the specific location and time of the accident) must still be taken into account to make a judgment.
Employers should continue to draw their employees' attention to the limits of statutory accident insurance coverage and possible alternative coverage options.