Article 195 of the Labor Code defines occupational risks as “accidents and illnesses that occur to workers, on occasion of or as a consequence of the work they perform in a subordinate and remunerated manner” (Law No. 2 Labor Code, 1943, Article 195).
In turn, Article 199 of the Labor Code indicates that occupational hazards do not include those that occur in the following circumstances that are duly demonstrated:
1) Caused intentionally or maliciously by the worker himself and
2) Those caused by drunkenness of the worker, or by the use of hypnogenic drugs, tranquilizers, excitants, as long as there is no medical prescription and there is a causal link between the state of the worker under the effects of drugs or alcohol and the risk that occurred.
In summary, the Labor Code presents two articles of interest, which, when interpreted, indicate which facts do not constitute occupational hazards. From the first rule, Article 195, when interpreted “negatively” or in the opposite sense, it is concluded that accidents and illnesses that occur to workers, but which are not caused by or as a consequence of work, will not be considered occupational hazards. The second regulation, Article 199, expressly details them, without the need for any interpretation.
Now, from an analysis of the jurisprudence of the Second Chamber of the Supreme Court of Justice, especially, of the considered votes issued after the implementation and effectiveness of the labor procedural reform that came into force on July 25, 2017, that is the date from which the Second Chamber uniquely assumes the knowledge and final resolution in cases of labor risks, the following can be noticed.
In the vote number 2017-001049 of 10:25 hrs of July 28, 2017, it is discussed whether the smoking habit that a worker had, related to his job functions of tasting the quality of tobacco for a tobacco company, can be considered an occupational hazard.
The Second Chamber argues that smoking cannot be considered a mere voluntary activity, since the product (in this case tobacco) generates dependence, and argues that the smoking habit in the work context contributed to the development of his disease. He adds that, although the function of tasting tobacco was not voluntary, the company benefited from it. Due to the above, he considers that there is an occupational hazard.
The Second Chamber, with the help of logical rules, considers that a causal relationship between the disease and the work has been demonstrated, since it argues that, although smoking was a habit of the worker's daily life, the fact that he did it in the company for the performance of his duties, had a significant influence on his disease.
At the same time, the Second Chamber gives a differentiated treatment to the consumption of tobacco, with respect to other drugs. The Court indicates that the decision to smoke is not considered merely voluntary because the product generates dependence. However, it could be argued in the opposite sense, that alcohol or other drugs referred to in article 199 of the Labor Code are also substances that generate dependence and therefore it is considered that there is no occupational risk.
In the vote number 2022-3264 of 11:45 a.m. on November 30, 2022, it is analyzed whether the death of a worker caused by gunshots of a third party during working hours can be considered an occupational hazard.
The participation of a third party is not one of the assumptions expressly contained in article 199 of the Labor Code that allow excluding an occupational hazard. However, the Second Chamber does refer indirectly to this situation, although it intermingles and interprets it in a manner associated with the “malice” of the worker. Fraud understood as an action carried out deliberately or voluntarily.
The Second Chamber indicates that the death cannot be considered work-related, because the victim provoked the aggressor intentionally, voluntarily and deliberately, even by dissociating himself from his work, who shot him and caused his death in response to the provocation. Therefore, the Second Chamber mentions both the “willfulness” of the worker to provoke his aggressor, but also indicates that the shots came from a third party who was outside the work activity of the deceased at the time the events occurred. In summary, this vote highlights the importance of distinguishing between incidents directly caused by work functions and those arising from personal conflicts, even if these conflicts originated in the work environment.
In vote number 2018-000099 of 09:30 hrs of January 19, 2018, the nature of an incident in which a female worker was attacked by persons hired by her ex-husband while performing a work activity of visiting a client is analyzed. This case has the particularity that there was a divided vote of the judges of the Second Chamber.
The majority position of the Second Chamber concludes that the attack was provoked by an external and non-work-related cause, specifically a malicious act planned by the ex-husband of the worker. Therefore, it is determined that the incident cannot be considered an occupational hazard, since it did not arise as a direct or indirect result of the work tasks performed.
It is made clear that not only the normative assumptions contained in article 199 of the Labor Code allow determining facts that do not constitute an occupational hazard. In this sense, it is also possible to consider arguments and justifications that are not contained in that norm, to assess that an event cannot be considered an occupational hazard, as in the present case. These “extra-regulatory” reasons to exclude the occupational hazard seem to be aimed at breaking “the causal relationship” between the injury suffered and the performance of the work.
The Chamber states that: “the employer was not in a position to foresee that the assigned tasks could lead to the attack planned by the former spouse in a malicious manner (unlike an assault, a fall, a run over, etc.)” The question remains as to what would happen if the event were foreseeable for the employer, would this change things, would it then have to be considered an occupational accident, and how to determine when a situation is foreseeable or not for the employer? Unfortunately, these are questions that cannot be answered with certainty.
The minority position of the Second Chamber concludes that, if there can be a causal link between the worker's duties and the injury suffered, since the work has facilitated the occurrence of the injury, since the worker was forced to leave the office towards the client's commercial establishment, and this facilitated the attack. Had she not had to perform this work, the accident would not have occurred. This position undoubtedly attracts attention and creates a fine line to interpret to what extent performing a task can “facilitate” the occurrence of an occupational hazard, especially when a situation of attack occurs, which, as the majority of the Second Chamber states, was not foreseeable for the employer.
The vote reinforces the need for a careful interpretation of the labor regulations and at the same time generates uncertainty, since it will depend solely on the interpretation of the Chamber, which, as can be seen, may give rise to conflicting and divided opinions.
In vote number 2022-002805 of 09:50 hrs of October 7, 2022, it is questioned whether an injury suffered by a worker during his working day should be considered a labor accident, considering that there was a dissatisfaction of the worker that could lead to presume that the injury was self-inflicted.
In this case, the Second Chamber makes it clear that malice must be fully demonstrated and cannot be presumed, even if there are indications or logical arguments, reliable proof is necessary. Although in the specific case there were particularities that made it seem that the worker had a clear dissatisfaction with his employer, this is not enough to presume and determine with certainty that the worker caused the injury to himself. In conclusion, the employer has the evidentiary duty to prove malice, when alleging this defense.
The vote number 2017-129 of 9:55 hrs of February 1, 2017 analyzes a case in which a worker dies due to cardiac arrest, after falling into a hole of almost 4 meters deep.
Pre-existing diseases, i.e., ailments that a worker has prior to an employment relationship have made it possible to exclude the existence of an occupational disease in a large number of opportunities. The logic is simple, the causal link is broken.
In this specific case, the Second Chamber has expressly demonstrated that the worker had a pre-existing condition in his heart, that is to say, a previous ailment in his arteries. Likewise, it is clear that the death was caused by a heart attack. However, it does determine the existence of an occupational hazard, since according to his statement, the heart attack could have been facilitated or provoked by the situation that the worker had to attend to while performing his duties; in this case, the fall of the bus he was driving into a hole that was almost four meters deep.
Therefore, it would seem that it is no longer sufficient for the employee to allege a pre-existing condition to exclude an event as an occupational hazard, but rather it is necessary that the work performed and the tasks performed by the worker are not those that facilitate, cause or trigger the injury or death.
Finally, it is important to indicate that, although not expressly stated in article 199 of the Labor Code, situations of force majeure have not historically been considered as occupational hazards, since they are also considered to break the causal link. Although there is no recent vote on this issue, this is due to the fact that it has been a consolidated position since long ago. Thus, in vote number 57, of 9:40 a.m. on June 30, 1982, it was stated of interest: “III. The sentence under examination is based on the fact that the accident suffered by Mr. ..., originated an accident due to an extraneous force majeure and unrelated to work, which does not generate the employer's obligation to repair it (article 210 of the Labor Code)”.
CONCLUSIONS AND RECOMMENDATIONS:
1. The tendency of the Second Chamber is to interpret and make the regulations more flexible in order to protect the worker. In other words, in case of doubt, it is resolved in favor of the worker.
2. The justifications of why “such” facts do not constitute an occupational hazard, must be proven conclusively by the employer, and are mostly evaluated in a restrictive manner by the Second Chamber.
3. The Second Chamber admits different factual assumptions that are not contained in the norm (article 199 of the Labor Code) to determine facts that do not constitute a labor risk as long as it is demonstrated that there is a break in the causal link, understood as the relationship between the injury suffered and an action that is a consequence of the work or occurs on the occasion of the work.
4. The participation of a third party by itself is not an indication that an event cannot be considered an occupational hazard; however, if it is demonstrated that such participation breaks the causal link or is associated to one of the conditions set forth in numeral 199 of the Labor Code, it would be a valid exonerating circumstance.
5. The Second Chamber does not adopt a rigid and unique position, but evaluates each case individually, considering the work environment, the nature of the functions, and in general all the specific circumstances that arise.
6. If the work performed by the worker facilitates in any way, even indirectly, an affectation to the worker's health, the Second Chamber will probably consider the event as an occupational hazard.
7. In the case of employers, it is recommended that a thorough investigation of all occupational incidents be carried out to identify the underlying causes, and the particularities that are present in each one of them. In case of doubt, it is recommended that the accident report be made to the INS, and that the latter make the corresponding decision.
At Bufete Godínez y Asociados, we specialize in counseling and advising employers in labor and employment law. If you need any additional information, do not hesitate to contact us by clicking here.
About the Autor