The Ministry of Health’s Operating Procedure for Occupational Risk Prevention Services to mitigate exposure to SARS-CoV-2 establishes certain criteria and measures aimed at preventing COVID-19 infections. However, automatically applying some of the contents of this procedure could entail certain risks for companies. A recent judgment highlights the need to take into consideration the specific circumstances present in each case.

The pandemic has brought about a genuine revolution in the labor law field, requiring companies and their workers to adapt with unusual speed to a situation that – in addition to being completely new – was (and is) fast-evolving. Sometimes this adaptation has been or is required by law and other times by a decision of the company or by agreement with the workers.

This necessary adaptation has had a special impact on the area of occupational risk prevention. In the light of the novel and uncertain nature of the disease, the Operating Procedure for Occupational Risk Prevention Services to mitigate exposure to SARS-CoV-2 prepared by the Ministry of Health became the go-to guide for employers containing the criteria for assessing risk, the preventive measures to be applied, how to handle positive cases and determine the risk levels of vulnerable groups, among other aspects.

However, automatically applying some of the contents of this procedure could imply certain risks for companies.

An Orense labor court has recently considered that there was a violation of fundamental rights in mechanically applying the action criteria established in the procedure, specifically those relating to the management of worker vulnerability and risk.

Specifically, we refer to judgment no. 318/2020, issued by Orense Labor Court No. 1 on October 5, in which the court agreed with a worker, a 69-year-old university professor with several pre-existing medical conditions, who asked his employer to allow him to teach his classes online rather than in person as required by a decision by the university.

In its defense, the employer contended that it had simply applied, as it did with all its staff, the guidelines contained in the Operating Procedure for Occupational Risk Prevention Services to mitigate exposure to SARS-CoV-2, specifically, in Schedule V, and that, according to such guidelines, neither an adaptation nor change of job position was necessary and that the employee should continue working as usual, that is, going to his workplace to teach his students in person.

The trial judge considered that the employer’s action constituted an infringement of the worker’s fundamental right not to be discriminated against on the basis of age on the following grounds:

  • Although the protocol establishes, for the group of vulnerable people older than 60, three categories according to their disease situation (“disease-free”, “with controlled diseases” or “with uncontrolled diseases”), it does not take into consideration that the risk of death from the virus increases with age. Accordingly, the risk is not the same for all people over the age of 60.
  • The criteria set out in the protocol must be understood in relation to workers who do not exceed the ordinary retirement age (then 65 years and 10 months at the time) and the automatic application of its criteria entails discriminatory treatment by including in the same category people who can retire at that ordinary age and others who can retire at an older age (let us recall that in the teaching field, the age of retirement can go up to 70).
  • The employer has not taken into consideration that, while teaching classes in person, the worker might come into contact with people who are asymptomatic or have minor symptoms, in a closed environment moreover. Accordingly, the worker’s risk is higher than initially considered.

Based on these arguments, the court ended up backing the worker’s petition to give his classes in a non-presential way as long as the circumstances caused by COVID-19 persist.

The judgment leads us to the reflection that companies should avoid automatically applying the general criteria established by the regulations and should take into account the specific circumstances of each case.

Lisbeth Gerónimo Mack

Garrigues Employment & Labor Law Department