A PREVIOUS ARTICLE DEALT WITH WESTERN EUROPE HERE NOW IS SOME GUIDANCE ON POSSIBLE ACCOUNTABILITY WHEN AN OCCUPATIONAL HEALTH INCIDENT OCCURS ACROSS CERTAIN COUNTRIES WITHIN EASTERN EUROPE. CONTRIBUTOR IUS LABORIS.
Slovakia
In Slovakia, liability for accidents at work is based on the principle of strict employer’s liability. This means courts do not examine whether an accident occurred as a result of a violation of OHS legislation or not. On the contrary, they examine whether the accident occurred in connection with the performance of certain work tasks. For accidents such as heart attacks, the courts have to deal with the question of whether the employee experienced exceptional physical or mental stress, not just the habitual overall employee load. This means that in some cases, the employer may be responsible even without being at fault; conversely sometimes an employer is not held responsible even if working conditions in the workplace are poor.
Hungary
In Hungarian law, employer’s liability is independent from culpability. As a rule, employers are liable to provide compensation for any injury or harm caused in connection with their relationship with employees. The connection between the injury or harm and employment must be at least presumed by the employee, who must prove they have been affected, and to what extent, as well as the casual link between the harmful conduct and the injury or harm.
If the injury or harm occurred in connection with employment, the employer is only exempted from liability, if it can prove that it occurred:
> because of unforeseen circumstances; and
> beyond the employer’s control; and
> there was no reasonable cause to take action to prevent or mitigate the harm to the employee.
Alternatively, the employer must prove the injury or harm was caused solely by the employee’s unavoidable conduct. According to case law, if it occurred within the employer’s control, the employer is liable and culpability, predictability and preventability are not assessed.
If the injury or harm occurred beyond the employer’s control, the court examines predictability and preventability. If the injury or harm was predictable, the employer will be liable even if it acted according to generally accepted standards to prevent it. If the injury or harm was not predictable or preventable, the employer will not be liable.
Croatia
In Croatia, the employer is liable for any work-related injury and occupational disease suffered by an employee while performing work for the employer. However, the employer can be released from liability, or liability may be reduced, if the injury or harm was caused by a force majeure, intent or extreme negligence by the employee or a third party (which could not be influenced or avoided even though the employer implemented all necessary health and safety measures in the workplace).
An injury at work has to be recognised as such by the Croatian Institute for Health Insurance in a special administrative procedure. In that case, the employee is entitled to 100% of his or her salary during the temporary incapacity for work. During this period, the employer is not allowed to terminate the employment contract.
Romania
Romanian legislation provides a wide range of health and safety measures employers must implement depending on the specific working conditions. Employees also have obligations in this field, but they do not interfere with the employer’s responsibilities. In practice, employees might try to link a specific incident or medical condition to the manner in which the employer fulfilled its obligations. However, it is mandatory for employers to instruct employees periodically regarding health and safety measures and to draw up internal regulations and information materials, which facilitate the distinction between employer and employee responsibility.
An incident is a ‘work accident’ if it takes place during working hours or is linked with work. After a thorough investigation resulting in a report, if an incident is deemed a work accident, the victim receives compensation through work accidents and occupational disease insurance. Additional damages supported by evidence, which are not covered by the insurance, could be granted under civil liability rules.
Employers must carry insurance for work accidents and occupational diseases and pay the premium for employees. If the employer does not fulfill this obligation, the insurance company might later hold it liable for compensation. In addition, the Criminal Code provides for criminal responsibility for employers that do not comply with their legal health and safety duties.
Serbia
Dealing with OHS matters in Serbia includes a large number of obligations for employers. If an employee suffers an injury at work, the employer is generally obliged to compensate the employee for the injury or harm suffered. If the cause of the employee’s death is not work related (e.g. naturally occurring death at the workplace), there is no civil liability for the employer.
If an employee is declared unfit for work, this does not necessarily indicate the existence of a link between the illness and the employee’s work and consequently does not necessarily mean the employer is liable. In this case, termination of employment is set as the last resort: the employer is obliged to find another appropriate position for the employee, if possible.
Belarus
Belarusian occupational health law distinguishes between work accidents and non-work-related accidents. A work accident is an event as a result of which an employee, performing work duties during working time on the employer’s property, suffers damage to his or her health. Accidents the only cause of which is intentional harm to health, alcohol or drug intoxication, existing disease or events which do not occur during work are non-work-related accidents. Every accident must be investigated in accordance with established procedures.
Employers’ obligations with respect to workers’ safety are extensive. According to legislation, employers provide mandatory insurance against work accidents. An employee who has suffered a work accident is entitled to mandatory insurance payments. The amounts of insurance payments vary and are directly related to the degree of incapacity to work. Establishing the degree of the victim’s responsibility is important. The victim also has the right to compensation for moral damage by the employer. Insurance payments will not be made if the damage to health results from a non-work-related accident.
Employer organisations and their officials can be held liable for violating occupational health and safety legislation, both administrative liability and criminal liability (for serious fatal or mass work accidents).
Poland
Employers’ legal obligations regarding health and safety at work in Poland are very extensive and they include taking appropriate measures to prevent work accidents and professional illnesses. These can, however, occur without the employer being at fault. Declaring such an accident or illness does not always imply the employer’s negligence or failure to fulfill its obligations concerning occupational health and safety. An employer can be accountable without being guilty.
When a work incident or professional illness is recognised, employees (or their families) can claim damages irrespective of the employer’s liability. These claims would be first covered by statutory state insurance. Only if this insurance does not cover all the damage, can an employee pursue supplementary claims from the employer, but in this case, as a rule the employer’s fault must be proven by the employee.
An employer can also be criminally liable for injury or harm suffered by an employee as a result of the employer’s failure to fulfill its occupational health and safety obligations. It is also possible even if no injury or harm occurs: the sole fact that the employer’s negligence exposed the employee to direct danger of loss of life or of serious damage to health would be sufficient.
