COVID-19 at the workplace

Biological hazards are microorganisms (bacteria, viruses, parasites, fungi, etc.), including genetically modified microorganisms, cell cultures, and human endoparasites, as well as other biologically active substances which may cause infectious diseases, allergies, or poisoning.

Pursuant to section 2 of Regulation no. 144 of the Government of the Republic of 5 May 2000 ‘The occupational health and safety requirements for working environment affected by biological hazards’, biological hazards are divided into risk groups. There are four risk groups:

The hazards included in the first risk group are not known to make humans ill; the group includes bee venom, as well as various toxins secreted by plants, snake venom, etc.

The hazards included in the second risk group may make humans ill and are thus a risk to the health of employees, but are not accompanied by the risk of infection for the wider population; there are efficient prevention and treatment methods for these hazards. This includes legionellosis or legionnaires’ disease and Lyme borreliosis. COVID-19 is caused by a novel coronavirus which is today officially known as SARS-CoV-2 (Severe acute respiratory syndrome coronavirus 2). Coronaviruses are currently placed in the second risk group in the classification of biological hazards, but the entire directive concerning these issues is being revised and updated by the European Commission and it is known that they are planning to move the older family members of COVID-19, such as SARS (Severe acute respiratory syndrome) and MERS (Middle East respiratory syndrome) to the third risk group. Thus, it cannot be ruled out that the virus which causes COVID-19 will be consequently classified to a higher risk group.

The hazards of the third risk group may cause severe illnesses for humans and are thus a serious threat to the health of the employee and may be accompanied by the risk of infection for the wider population, but there are efficient prevention and treatment methods for these hazards. This risk group includes hepatitis, or jaundice, and pneumonia.

The hazards of the fourth risk group cause severe illnesses for humans, are thus a serious threat to the health of the employee and may be accompanied by the risk of infection for the wider population; there are usually no efficient prevention and treatment methods for these hazards. This risk group includes the Ebola virus. 

In the case of all works which are accompanied by the risk of coming in contact with biological hazards, the employer must determine the type, extent, and duration of the risk of the employee being infected in the course of the working environment risk analysis and, based on this, assess the risk for the employee’s health and implement necessary precautionary measures.

Since an employee comes in contact with other people in the case of most jobs, the contact with a biological hazard is always present in these cases. While contacts with customers or co-workers have not called for implementation of special measures so far, the situation has now changed which means that there is new information about the impact of the hazard on human health. Thus, the current risk assessments must be reviewed and necessary measures must be implemented to reduce the health risk. It is up to every employer to decide which measures are necessary in a specific working environment as they know the operations and the working environment of their company better than anyone else. We stress the importance of the risk analysis because it is not possible to find good solutions unless the nature of the problem is clear. If the idea of conducting the risk analysis seems to be a huge task, we will make it easier by explaining below what should be focussed on in the case of biological hazards.

• From the perspective of preventing the spread of COVID-19, it is important that an employee who has been in close contact* with a potentially contagious person notified their employer.
• From the perspective of preventing the spread of COVID-19, it is important that an employee informs their employer of the test results. It is equally important to inform the employer of negative test results to stop co-workers from worrying.

Yes, the choice is made by each employer based on the results of biological hazard risk assessment in the working environment. The Labour Inspectorate inspects the risk assessment, the measures taken to mitigate the risks and the specific activities organised by the employer, in particular as part of the general inspection, when resolving a complaint or in connection with an investigation into an accident at work or an occupational disease.

No. During instruction, the employee must confirm that they are aware of work-related hazards and preventive measures and is able to cope in the work environment – see Instruction and training.

However, the employee must be informed of updating the risk assessment of the working environment and the work environment action plan. This is the employer's obligation pursuant to section 13(⁴⁾ of the OHS Act.

If the employer has determined, on the basis of a risk assessment, that there are biological risk factors in the work environment (including infection from the coronavirus), the employer must decide what measures to take to prevent or reduce the hazards. Personal protective equipment (e.g. masks) should be used if the risk assessment shows that the risk of disease cannot be prevented or reduced by the use of collective protective equipment (e.g. safety glass to prevent the spread of the virus) or by organisational measures (maintaining distance, availability of disinfectants). 

The employer has an obligation to inform employees of the results of the risk assessment of the working environment, including health risks and measures taken to prevent damage to health. The employer explains to the employees what possible hazards are identified in the risk assessment (risk of infection in a specific company, while doing a specific job) and what are the measures to be implemented. As collective protective equipment or work organisation measures must be preferred to the use of personal protective equipment, it must be explained to employees why the use of personal protective equipment was decided. 

The employer must also ensure that the personal protective equipment does not place an excessive load on the user, is suitable for the user and to be used in certain working conditions. If these requirements are not met for some employees, the employee must contact the employer and seek solutions in cooperation (e.g. using a different type of mask or reorganising work, allowing the employee to take more breaks). 

An employer's risk analysis may stipulate that a vaccinated employee does not have to wear a mask. The actual situation regarding the spread of the virus shall always be taken into account, therefore, vaccinated employees may also be required to wear a mask in high-risk sectors or a safety glass may be installed in places where it is possible.

It is the employer's responsibility to ensure a work environment where the possibility of the virus spreading is minimised in order to ensure a safe and healthy working environment for the employees. Used masks, gloves, etc. are not suitable for regular waste collection. The topic is further discussed in an article by the Ministry of the Environment.

An occupational accident is damage to the health of an employee or death of an employee which occurred in the performance of a duty assigned by an employer or in other work performed with the employer’s permission, during a break included in the working time, or during other activity in the interests of the employer. Damage to the health or death which occurred in the cases listed but which is not in a causal relation to the work of the employee or the working environment is not deemed to be occupational accident (subsection 22 (1) of the Occupational Health and Safety Act). Occupational accidents are considered to be so-called sudden health damage due, for example, falls, but also due to poisoning caused by the inhalation of chemical vapors. 

A disease, such as coronavirus, may be a work-related disease. Diseases related to work are divided into two – work-related diseases and occupational diseases. An occupational disease is a disease caused by a working environment hazard or the type of work mentioned in the list of occupational diseases. A work-caused disease is a disease caused by a risk factor in the working environment that is not considered an occupational disease. 

Coronavirus may be an occupational disease within the meaning of subsection 3 (7) of Regulation No. 66 of 9 May 2005 of the Minister of Social Affairs, ‘List of Occupational Diseases’, in accordance with which occupational infectious diseases and occupational parasitic diseases are other infectious and parasitic diseases caused by biological hazards of the working environment. Coronavirus would be classified under other occupational infectious diseases. 

If you suspect that your illness may be due to work, i.e. you got sick while performing your duties at work, tell your doctor. A family doctor or other doctor who suspects that the employee may have an occupational disease will refer the person to the occupational health doctor for diagnosis of the occupational disease. The occupational health doctor ascertains the employee’s state of health and collects data on the employee’s working conditions and the nature of the work. The decision as to whether the disease is due to work or not is made by the occupational health doctor.

Our employee has been on sick leave with the coronavirus for three weeks. The employee no longer has any symptoms, but the test result is still positive. The family physician says that the employee can resume work because the test can show a positive result for up to 90 days. Can the employee resume work?

A family physician is an expert in the field of medicine, whose opinion and decision can and must be accepted by the employer. In this case, the employee must be allowed back to work, even though the test is still positive. 

Further information is provided in the guidelines of the Estonian Family Physicians Association. The guideline clearly states that although the patient is no longer infectious, their SARS-CoV-2 PCR test result may be positive for several more weeks. Therefore, family physicians no longer refer a person for repeated testing before the end of the incapacity for work certificate. 

To prevent the spread of the virus in the work environment, assess the likelihood of the biological hazard occurring and, if necessary, take measures to help prevent the risk.

Yes, because measuring body temperature is the processing of personal data. Under the European Union's General Data Protection Regulation (GDPR), the processing of personal health data is prohibited unless there is a specific basis in the current law to allow the processing of health data.

In the work environment, the main question is how this is done, how people are informed about it, what is done with this data or what happens when an employee or a customer does have a fever. The rights of the enterprise/employer are rather limited in this context.

The Estonian Data Protection Inspectorate has clarified that a person's health data may not be processed on the basis of a so-called legitimate interest, and the legal basis for processing health data can be law or the person's consent. From this it follows that an employer may process personal health data in the context of a COVID-19 outbreak only if the employee has voluntarily disclosed such data to the employer.

In other words, before measuring body temperature, it is necessary to think whether it is necessary or the only way to distinguish a sick person, what happens if a person refuses, and whether there are other ways to prevent the disease from spreading.

Consideration also needs to be given to how body temperature is measured and with what device. If it is done by another person, is their safety guaranteed, considering that they come into close contact with every potentially infected person (whether the use of a visor, mask and gloves is sufficient protection, whether this task has the possible effect of a psychosocial risk factor)? If this is done with a remote reading device, how will the person with the higher body temperature be informed and what will happen next (the customer will not be admitted, the employee will be asked to leave the place of work, who will pay the employee remuneration for that day?). 

Teleworking is based on an agreement of the parties. An employer cannot force an employee to work remotely and an employee cannot unilaterally demand teleworking. In order to avoid later disputes, it is recommended to negotiate and resolve all conditions related to telework. Important issues are, for example:

1. whether the employee can perform telework and what they need from the employer for this to be possible;
2. whether the employer is interested in the employee working remotely and what expenses they are prepared to bear, i.e. how the work and working conditions could be reorganised to suit the needs of the employee;
3. how will working time be calculated, etc.

The employer's obligations under the Occupational Health and Safety Act (OHS Act) also apply to working time on telework, as the current OHS does not prescribe any specifications. The main way for an employer to mitigate the risks of a place of teleworking is to supervise the employee.  Therefore, the employer shall pay special attention to the instructions, e.g. prepare illustrative and simple material (e.g. pictures of a suitable sitting position or position of the monitor). Instruction shall be given before an employee is allowed to telework. In the case of teleworking, the employer shall provide the following to the employee:

• hazards related to the teleworking environment;
• health effects of the hazards;
• measures for preventing damage to health. 

The employer is also obliged to make sure of the safety of the work environment in the case of telework (carry out a risk assessment, instruct the employee, etc.). In the case of teleworking, it is possible to use alternative options to carry out a risk assessment – for example, to ask the employee for pictures of their workplace at home and/or to have the employee map the risks of the work environment and pass the information to the employer. For example, if the risk assessment reveals that the employee does not have a suitable office chair for working with the monitor, the employer and the employee must work together to find a way to use a chair that meets the necessary requirements. 

It is also necessary to instruct the employee working from home on how the workplace should be designed, when to take breaks, what the possible health effects are, whether and under what conditions can work be done outside the home office (for example, at the beach, in the park or elsewhere). 

In this case, the employer is convinced of the safety of the workplace through the risk assessment, and, if necessary, has found an opportunity to improve the workplace in agreement with the employee, as well as instructed the employee on what is good organisation of work and workplace design and why it is important. 

An accident at work is an accident that is causally related to the employee's work or work environment. An accident at work can also occur while working remotely. If a connection to work is established in the event of an accident during teleworking, it is considered an occupational accident. Before the start of teleworking, the employer and the employee shall think about how the employee should act in the event of an occupational accident. Guidelines for behaviour in the event of an accident during teleworking, including notification of the accident, can be reflected in the rules of work organisation or in the safety instructions. It is important for the employee to know that the employer must be notified of the accident as soon as possible. If there is a delay in notification by the employee, it may not be possible to unequivocally prove that the accident occurred while working. For example, an employee falls on a Friday afternoon while bringing a laptop charging cable. At first it seems that the injury is small, but on Sunday his leg hurts so much that it is necessary to see a doctor. If the employee informed the employer of the fall on Friday, it is easy to establish a link between doing the work and suffering this damage to health. However, if the employee only notifies the employer on Monday, it is already much more difficult to prove that the employee did not fall in their free time. In any case, the employee must immediately inform the employer of an accident. 

The employer shall ascertain the connection between the accident and work in the course of an investigation. The employee with whom the accident at work occurred during teleworking must inform the employer of the circumstances of the accident and explain how the accident is related to the performance of work duties. For example, it shall be considered an occupational accident if the employee was injured at home due to failure of the work equipment. An accident that occurred while doing housework at home is not an occupational accident. 

The fact that the accident at work did not take place at the employer's premises but rather at the location where the telework took place does not release the employer from the obligation to find out the causes and circumstances of the accident at work. If the employer is not allowed to investigate the accident at the scene (e.g. the employee does not allow the employer into their home), it may be more difficult for the injured worker to prove that the injury occurred as a result of an accident at work. 

When enabling teleworking, the employer shall do everything possible to prevent occupational accidents. The employer can assess the risks, instruct the employee and send the employee to a medical examination. If the employer has fulfilled all the obligations on health and safety at work, then they are presumably not guilty of the accident at work. If necessary, the court will make the final assessment as to whether or not the employer has fulfilled its obligations. 

Teleworking is a condition of the employment contract. Once this has been agreed, it can be changed by a new agreement, but not cancelled. In the described situation, the employee has essentially fulfilled their obligation to the employer arising from clause 15 (2) 7) of the Employment Contracts Act – the employee immediately notifies the employer of the obstacle to work or the risk of its occurrence and, if possible, removes the obstacle without any special orders. 

If the employee is not able to remove the obstacle him- or herself, solutions must be found in cooperation with the employer on how the work can still be continued. For example, the employee’s neighbour starts active construction work – could the employer allow the employee to work in the office during the construction work; is the employer prepared to look for another rental space for the employee where they can work during normal working hours, or could the working hours be changed so that the work takes place before and after the active construction work? All such agreements are possible and permissible in the employment relationship, but they require negotiations and, of course, a solution-oriented approach on both sides. 

An analogous situation is when the employee works in the employer's office, but construction work begins there and due to the noise it is not possible to continue working in the office, as it would harm the employee's health. In such a case, the solution is usually to find another place of work, move temporarily or send the employee to telework with their consent. Now, however, the employee has new risks in the work environment at home, which must be mitigated in cooperation with the employer.

The main obligation of the employer, i.e. pursuant to subsection 12 (1) of the Occupational Health and Safety Act, ‘An employer shall ensure the conformity with occupational health and safety requirements in every work-related situation’. Corresponding to this is the obligation of an employee specified in clause 14 (1) 1) of the same Act to participate in the creation of a safe working environment, observing the requirements of occupational health and safety. 

According to the legislator, the provision of work equipment and the furnishing of the work space is the responsibility of the employer. When sending an employee to a home office, the employer has the choice of having the necessary tools (e.g. desk, chair, monitors, printer, etc.) sent to the employee's home or providing them with some new work equipment. It is also possible for the employee to bear the costs themselves first and for the employer to reimburse the costs. 

In order to preserve the employee's health and prevent future health damage through working in the wrong position, it is very important for both the employee and the employer that the risks of teleworking have been assessed and timely decisions made on what needs to be moved from the office to the employee’s home or additionally acquired so that the employee would not be working in the wrong position for a long time. 

In addition to the provision of work equipment, prior instruction of the employee is certainly important, as well as agreements on how to better assess the employee’s working position at home by a specialist in the field, for example on the basis of pictures or a video. It is not enough to provide information on an empty workplace, as it is essential to look at how the employee actually sits and is positioned in relation to the table, chair, monitor, and keyboard to be able to assess whether it is an ergonomic working position or whether the workplace should be redesigned/adjusted.

• See also the recommendations of Tartu Health Care College for the correct design of the home office workplace 

The situation has lasted for nearly two years and working outside the office is not a free choice, because in order to avoid infection working in the office is not possible. The state also recommends teleworking if possible, but how are the costs of the employer and the employee distributed in this situation?

Telework-related costs are essentially the employer's business costs that must primarily be borne by the employer. As provided in subsection 40 (1) of the Employment Contracts Act, the employee may demand that expenses incurred in the performance of duties be compensated for pursuant to subsections 628 (2)–(4) of the Law of Obligations Act. An agreement on compensation for expenses on the account of wages is void.

However, an employee cannot expect the employer to reimburse them for the equipment acquired without prior consent. 

The parties must negotiate and jointly decide what costs can be incurred at the expense of the employer to purchase an ergonomic table and chair for the employee’s home office. The employee cannot decide this unilaterally, as the employer may be able to offer much more favourable opportunities. It can also be agreed that the employee will buy a chair and table that best suits their needs, but these must meet the requirements of an ergonomic work environment and the employer will only reimburse the costs of acquiring the equipment to a certain extent. It is a similar solution as with compensation for glasses. It should be noted here that there is a difference in the taxation of expenses. 

The conditions for working from home or teleworking in general can be very different. Some employees already have a workplace setup at home and do not need or want additional resources from their employer. For others, the whole situation is still new, and they think that alternating work behind the kitchen dining table, on the couch and laying in bed with a laptop is sufficient. In the short term, it may even work, but in the long run it is not a good solution and the worker still needs a healthy environment to work. 

In conclusion, in the absence of the necessary work equipment in the home office, the employee must contact the employer and make their proposals, but the final decision on the procurement of work equipment at the employer's expense remains with the employer.

A longer explanation on the topic can be found at Ärileht.ee  

In addition, an explanation from the Tax and Customs Board on the taxation of the home office