For the inquiry on whether Employees who are infected with COVID-19 at work shall be considered as occupational accidents, occupational diseases or not, and At present, this is an unprecedented and unguided issue, even the Department of Labour, Invalids and Social Affairs has also not been able to answer and sent a request letter to the Ministry of Labor, War Invalids and Social Affairs for instructions in a timely manner. (https://thanhnien.vn/tp-hcm-nhan-cong-bi-lay-nhiem-covid-19-tu-cong-ty-co-tinh-la-tai-nan-lao-dong-post1406512.html)
Therefore, the following FUJILAW opinions are our own views only. In order to have an accurate answer for this issue, We will have to wait for instructions from the Ministry of Labour, Invalids and Social Affairs.
1. Occupational accidents:
(i) Pursuant to Clause 8, Article 3 of Law on Occupational Safety and Hygiene, it provides that: “Occupational accident means an accident that causes injuries to any bodily part and function of an employee or causes death, and occurs during the course of work, in connection with their performance of a job or a task.”
(ii) The definition of “an Accident” is not clearly specified in any provisions specified in Occupational Safety and hygiene. However, We can understand that an accident is an unexpected event, caused by an external impact, causing injury to the body.
(iii) According to the law, in order to be considered an occupational accident, it must occur during the course of work, in connection with their performance of a job or a task.
=> Thus, the Covid-19 pandemic, although happen unexpectedy, causing damage to the body, however it is considered as a disease, not an accident. And the fact that we call the Covid-19 is “an pandemic” also proved this point.
Simultaneously, one of the conditions to be considered as an occupational accident if such accident has occurred during the course of work, in connection with their performance of a job or a task. However, with the current pandemic situation, it is difficult to trace and confirm whether the source of infection that Employees are infected is at the workplace, or infected when performing labor duties outside the workplace or not.
2. Occupational Disease
Pursuant to Clause 9, Article 3 of Law on occupational safety and hygiene, it provides that: “Occupational disease means a disease caused by the harmful working condition of an occupation on an employee.
Thus, if the Employee performs a job or occupation is forced to exposure to the SARS-CoV-2 Virus, thereby being infected with Covid-19, then this case will be considered an Occupational Disease. For example, those who are medical staff, doctors, nurses, medical staff, involved in the treatment, examination, and work directly with Covid-19 patients and are infected. (The Ministry of Health has also proposed in a drafted Circular providing a list of a number of occupations and jobs that are often exposed to the SAR-CoV-2 virus and will be entitled to social insurance. For more details, please refer to the following link: http://baochinhphu.vn/Chinh-sach-moi/Bo-sung-COVID19-la-benh-nghe-nghiep-duoc-huong-BHXH/447441.vgp)
Except for the occupations and jobs mentioned in the aforementioned link, other occupations and jobs that are not required to be exposed to the SARS-CoV-2 virus during the course of work of the Employees, then it shall not be deemed to an Occupational Disease.
3. Compensation and allowance responsibilities (if any):
Assuming that the Employee is infected with Covid-19 and is considered an Occupational Accident or Occupational Disease, then the Employer shall be obliged to pay compensation and allowance specified in Article 38 of the Law on Occupational Safety and Hygiene, including:
(i) Pay compensation for the Employee suffering from Occupational Accidents that are not entirely his/her fault;
(ii) Pay compensation for the Employee suffering from Occupational Diseases;
(iii) Pay allowance for the Employee suffering from Occupational Accidents if the accident is entirely his/her fault.
=> Thus, it can be seen that if an Employee suffers an Occupational Accident or Disease, the Employer shall be obliged to compensate or provide allowances for such Employee (depending on the level of his/her fault in order to determine compensation or allowance for the Employee suffering from an Occupational Accident, Occupational Disease).
Currently, Covid-19 is considered a force majeure event, instead of eradicating it, We are forced to live with it, and anyone can be infected. Therefore, it will be unfair and put the Employer in a very difficult situation if forcing them to compensate and pay benefits to the Employee who is infected with Covid-19 during his/her working process and is identified as an Occupational Accident.
From the aformentioned analysis, FUJILAW’s view for this issue is that Employees infected with Covid 19 associated with the performance of their jobs shall not be considered as Occupational Accidents. If the Employee performs jobs or occupations forced to expose to the SARS-CoV-2 virus, this case shall be deemed to Occupational Diseases. Other cases in which the Employees were infected with Covid 19 infection during its performance shall not be considered as Occupational Diseases.
However, these above are just inferences and FUJILAW’s experience. In order to have an accurate answer for this issue, We will have to wait for official guidance from the Ministry of Labour, Invalids and Social Affairs, or your Company can prepare a written Official Letter to ask the Ministry of Labour, Invalids and Social Affairs prior to performing.