Can COVID-19 infection be considered an occupational disease or injury? Analysis to fill up regulatory gaps

1 Highlights

•

ILO did not directly enlist COVID-19 infection as an occupational disease.

Still, it can be interpreted as an Occupational Disease in certain circumstances under ILO.

So, COVID-19 infection should be enlisted as an occupational disease to replace legislative gaps.

Note that disease or injury’s link with the occupation is vital; place of occurrence is immaterial.

1 Introduction

Occupational or work-related diseases have significant repercussions for workers, employers, and society as a whole [1]. According to a recent study conducted by the International Labour Organization (ILO), workplace injuries annually result in 2.78 million deaths and 374 million nonfatal injuries worldwide [1]. Their study also reveals that weak workplace safety and health policies contribute to an annual economic burden equivalent to 3.94 percent of the world’s Gross Domestic Product (GDP) [2].

The term “occupational injury or disease” has been defined by various authorities worldwide [3–5]. However, for the purposes of the Protocol of 2002 to the Occupational Safety and Health Convention, 1981 (Convention No. 155) of the ILO, the phrase “occupational disease” encompasses any condition contracted due to exposure to risk factors arising from work activity [6]. Furthermore, the ILO Employment Injury Benefits Recommendation, 1964 (Recommendation No. 121) provides a more specific description of occupational diseases:

“Each Member should, under prescribed conditions, regard diseases known to arise out of the exposure to substances and dangerous conditions in processes, trades, or occupations as occupational diseases [7].”

In fact, there are two main components that are commonly found in the majority of these types of definitions [8]. Firstly, there is a causal link established between exposure to a specific workplace environment or activity and the development of a particular disease. Secondly, the occurrence of the disease is observed to be more frequent among the group of individuals who have been exposed, as compared to the general population or other worker populations.

In addition, many countries have identified and defined occupational diseases under their respective national authorities, often with some variation. This includes diseases for which there is substantial scientific evidence suggesting a work-related cause, even if they may not meet all the criteria outlined by national authorities to be formally recognized as occupational diseases [9]. Most importantly, the disease or injury must have to be based on the concept of occupational risk [10]. Also, it is central to establish a causal link between exposure to “risk factors” and the “development of the disease” when making a diagnosis [10]. Work-related diseases have a multifaceted etiology, as evidenced by research conducted by Staal, De Bie, and Hendriks [11] and Sommerich and Hughes [12].

Given that these diseases can have multiple causal agents and are influenced by various factors arising from the work and/or working environment, it is crucial to comprehend these interactions in order to implement the most effective prevention policies [13]. Consequently, it can be argued that the definition provided by national or international authorities alone may not be sufficient to determine whether a disease falls within the scope of occupational injury or disease without careful examination and interpretation by competent medical and legal authorities.

The recent COVID-19 pandemic has sparked a new debate regarding whether this type of disease should be considered an occupational or work-related injury or disease [14]. A study conducted on this subject demonstrates that:

“To date, COVID-19 has not been included in occupational disease lists provided by international organizations, namely the International Labour Organization, World Health Organization, and European Union, despite examples of country-level regulations [15].”

The central argument is that the ILO serves as a specialized agency of the United Nations, responsible for assessing and addressing the occupational or work-related risks associated with COVID-19 [16]. In this capacity, the ILO proposes criteria for identifying work-related diseases and recommends the inclusion of COVID-19 in such lists. These recommendations can serve as a foundation for local or national actions. Therefore, it is worth exploring whether the ILO currently lacks guidelines to classify COVID-19 as an occupational disease. Furthermore, when it can be established that a disease or injury arises directly from one’s occupation or workplace, affected workers may be entitled to compensation under national-level policies [17].

In delving into an in-depth discussion, we need to identify the importance of this area of study. The title of the manuscript holds significant importance in the current landscape. The recent global pandemic has not only reshaped our understanding of health and safety but has also posed unprecedented challenges to the world of work [18, 19].

As workplaces adapt to this new normal, it becomes crucial to determine whether COVID-19 infections can be classified as occupational diseases or injuries. With these considerations in mind, this study aims to achieve the following objectives:

Can COVID-19 infection be considered an occupational disease or injury under the interpretation of ILO’s policy?

This study addresses a pressing concern that directly impacts workers’ rights, [20] employee welfare, [21] and employer responsibilities [22]. By thoroughly analyzing the potential categorization of COVID-19 within the framework of occupational health and safety, the study aims to bridge regulatory gaps that may exist.

In the absence of clear interpretations or guidelines, there is a risk of inconsistent recognition and compensation for individuals who contract COVID-19 due to their work environment [23]. This study’s exploration of the matter can offer valuable insights into establishing standardized criteria for identifying COVID-19 as an occupational disease or injury. Such clarity is pivotal for ensuring that affected individuals receive the necessary medical care, financial support, and legal protection [24].

2 Methodology

This study employs a traditional or doctrinal approach to legal research, specifically utilizing the expository research technique as defined by Arthurs (1983) within a professional constituency framework [25]. According to Arthurs (1983), expository research typically involves presenting and explaining existing legal doctrines, principles, statutes, cases, or conventional treaties and articles without necessarily conducting new empirical research. This approach focuses on analyzing and synthesizing existing legal sources to provide a clear and comprehensive understanding of the legal subject matter under investigation.

The doctrinal legal research technique emphasizes the interpretation and analysis of legal rules derived from primary sources such as statutes, conventions, regulations, and cases, prioritizing a descriptive and comprehensive evaluation of the letter of the law rather than its practical application [25, 26].

This methodological approach enables an open exploration of the research questions at hand: Does the ILO recognize COVID-19 infection as an occupational disease or injury? If so, how can individual states align their national legislation with the guidelines set forth by the ILO? Furthermore, how have recent legal decisions concerning diseases or injuries been interpreted in terms of their occurrence within the context of employment?

To address the first question, this study collected primary data from relevant ILO conventions, protocols, recommendations, regional treaties, and UN agency documents. For the second question, primary data was obtained from state legislation in various countries. To tackle the third question, legal decisions were the source of primary data. Additionally, this study incorporates secondary sources such as articles, editorials, commentaries, books, book chapters, and legal blogs to support its objectives further.

The objective of this methodology is to gather, systematize, and elucidate legal provisions, providing commentary on the sources used and subsequently discerning and defining the underlying subject or system [27], which has been precisely carried out in this article.

The applied aspect of this doctrinal study focuses on the systematic exposition and explanation of specific legal principles, thus falling within the purview of the “expository” tradition in legal research [28].

3 ILO’s role in recognizing COVID-19 infection as occupational disease

The ILO serves as a specialized agency of the United Nations, responsible for planning and investigating the occupational or work-related risks associated with COVID-19 [16]. Consequently, the central inquiry is whether the ILO has included COVID-19 in its occupational disease lists.

According to the ILO, if an infection is acquired as a result of work, it should be recognized as a work-related disease or injury [29]. It is noteworthy that Schedule 1 of the Employment Injury Benefits Convention, 1964 (Convention No. 121) [30], delineates a comprehensive list of occupational diseases. Within this list, paragraph 29 specifically addresses “infectious or parasitic diseases contracted in an occupation where there is a particular risk of contamination [29]”. Such diseases are deemed to fall within the scope of occupational disease or injury for occupations involving exposure to risk, including health or laboratory work (clause, a), as well as other forms of work entailing a specific risk of contamination (clause, d) [31].

The crucial question at hand is whether the message conveyed by the ILO clarifies the categorization of COVID-19 infection as an occupational disease or injury. Undoubtedly, COVID-19 is classified as an infectious disease. However, the question remains: Does this infectious disease fall under the purview of Convention No. 121? Certainly, paragraph 29 of Convention No. 121 implies that any infectious disease contracted “arising out of and in the course of employment” is encompassed. Nonetheless, a pertinent question arises regarding the location of the infection, as COVID-19 can be contracted in various settings, including the workplace, during commuting, or at other times. Moreover, it has been observed that many sectors have instructed their workers to work from home during the pandemic. Essentially, by workplaces or places of work, we refer to the customary locations from which workers operate. Nevertheless, a legal matter may arise concerning whether work conducted from home qualifies as a workplace and whether the physical location of work holds significance.

In fact, ILO does not explicitly address the classification of working from home as a workplace within its documents. However, it is worth noting that the ILO does recognize infections contracted in the workplace or during commuting as occupational or workplace diseases or injuries [16]. It is evident that COVID-19 is an infectious disease primarily transmitted through exposure, which can occur during commuting or in workplaces where multiple workers are employed, or in settings involving interactions with the general public [14].

Moreover, the interpretation of the ILO’s phrase “other work carrying a particular risk of contamination [32]” is arguably not limited to specific occupational domains, such as healthcare workers, first responders (police, firefighters, guards), and essential workers in critical infrastructure (workers in sectors of services such as transportation, and work production). It may encompass any workers who are on the front line and face the risk of contracting and spreading the virus in the course of their work. Such diseases or injuries fall within the scope of Articles 7 and 8 of Convention No. 121 [33], as well as Article 32 of Convention No. 102 [34]. For instance, Article 7(1) of Convention No. 121 mandates member states to define “industrial accident,” which includes the circumstances under which a commuting accident is considered an industrial accident. However, if social security schemes other than work injury schemes provide commuting accident benefits equivalent to those provided under the industrial accident plan, it is not mandatory to include commuting accidents in the definition of “industrial accident” according to article 7(2), Convention No. 121.

Clearly, determining how and when a worker contracted the virus, whether at the workplace or during commuting, can be challenging. Nevertheless, whether the infection or disease was acquired in the workplace or during commuting is immaterial because, in either scenario, it would be deemed an occupational injury or disease, as evident from the legal decision discussed in Section 5 of this manuscript.

Furthermore, the ILO has instructed member states to “define” (according to Article 8 (b), Convention No. 121) and list “occupational diseases” (according to Article 8 (a), Convention No. 121) within their national legislation in accordance with Schedule 1 of Convention No. 121. Article 8 (c) of Convention No. 121 also highlights the importance of identifying the occupational origin of diseases that are not listed or specified in their national legislation. This notion of the “occupational origin of diseases” could potentially support the inclusion of COVID-19 infection as an occupational disease under the ILO framework.

Additionally, the convention provides certain conditions under which specific situations are considered occupational diseases if they are caused by an accident or a prescribed work-related disease [35]. These conditions include morbid conditions that result in the inability to work or earn a living above a certain degree, significant and likely permanent loss of earning ability, or comparable loss of ability. Similarly, article 6 of Convention No. 121 also outlines similar situations that are recognized as employment or work-related injuries or diseases.

Moreover, the List of Occupational Diseases Recommendation, 2002 (Recommendation No. 194), states that:

“Diseases caused by other biological agents at work not mentioned in the preceding items where a direct link is established scientifically, or determined by methods appropriate to national conditions and practice, between the exposure to these biological agents arising from work activities and the disease(s) contracted by the worker [36].”

This message can also be utilized to interpret COVID-19 infection within the scope and definition of occupational or work-related diseases or injuries.

In the revised (2010) List of Occupational Diseases Recommendation, 2002 (Recommendation No. 194), certain “respiratory diseases” have been included as occupational diseases. Although COVID-19 infection is not specifically mentioned in this list, it does encompass ‘other’ respiratory diseases where a clear scientific link or established national practice exists between exposure to risk factors arising from work-related activities and the diseases contracted by employees according to Annex, paragraph 2.1.12, Recommendation No. 194. Additionally, the inclusion of “post-traumatic stress disorder” (PTSD) in Recommendation No. 194 (Annex, para. 2.4.1) serves as a rationale for recognizing COVID-19 as an occupational disease due to its mental health implications. Given the inclusion of PTSD in ILO Recommendation No. 194, it becomes evident that the international labor community recognizes the profound mental health implications of certain occupational conditions. As the COVID-19 pandemic unfolded, healthcare workers and essential personnel faced unprecedented challenges, including high levels of stress, anxiety, and trauma due to the nature of their work. The constant exposure to the virus, the fear of contagion, and the overwhelming workload have placed these individuals at an increased risk of developing PTSD. By acknowledging PTSD in the context of occupational diseases, the ILO implicitly recognizes that the mental health impact of a job can be as significant as physical health risks. Therefore, in the case of COVID-19, where frontline workers experienced unique and extreme stressors, it is justified to consider the inclusion of this infectious disease as an occupational disease. This perspective not only aligns with the evolving nature of occupational health but also underscores the need for comprehensive recognition and support for those who bear the mental health burden of combating a global health crisis.

Moreover, the Social Security (Minimum Standards) Convention, 1952 (Convention No. 102), specifically addresses employment injury benefits in Part VI, which can encompass diseases or injuries caused by COVID-19. In accordance with this, the Committee of Experts on the Application of Conventions and Recommendations (CEACR, 2020) [37] argues that if COVID-19 is contracted in the workplace, it should be regarded as a work-related or occupational disease or injury, depending on the circumstances. Furthermore, if the nature of the work involves close and frequent contact with coworkers or the public, it should also be considered a work-related injury or disease. The CEACR statement has expanded the scope and coverage of occupational diseases, potentially including COVID-19 infection as a work-related disease under the purview of the ILO.

Consequently, in accordance with Conventions Nos. 102 and 121, individuals who contract COVID-19 as a direct result of their employment are entitled to receive healthcare services, while those unable to work, regardless of the extent, should receive cash benefits or compensation. In cases where individuals lose their lives due to COVID-19 infection during work-related or occupational activities, their dependent family members, such as children and spouses, should be granted cash benefits or reparations, as well as a grant or benefit to cover funeral expenses according to article 18, Convention No. 121. Additionally, Article 9(1)(a)(b) of Convention No. 121 mandates member states to provide workers with medical treatment, auxiliary benefits for debilitating conditions, and various financial benefits. Moreover, comprehensive medical care and other benefits for severe illnesses must encompass services provided by general practitioners and specialists, both within and outside hospital settings, including home visits. It should also include nursing care either at home or in a hospital or other medical facility, as well as emergency care for workers who have sustained serious injuries whenever possible as per article 10(1)(a)(c)(g)(i) of Convention No. 121.

In summary, the prevailing position of the ILO is to recognize COVID-19 infections as occupational or work-related diseases, while also ensuring that adequate compensation is provided to victims and their families to meet their basic needs, at the very least.

4 States’ response to consider COVID-19 as an occupational disease

Research indicates that approximately one in five individuals in the United States work in occupations where they are exposed to infection at least once a month, including those in the healthcare industry and uniformed services [38]. Furthermore, workers across various sectors have been affected by COVID-19, highlighting the need to examine how work environments can contribute to disease transmission and the measures taken by employers and relevant stakeholders to mitigate its spread through preventive actions.

One fundamental question that arises and has yet to be thoroughly discussed is whether individual states consider COVID-19 as an occupational or work-related disease [4]. Koh D’s study underlines that COVID-19 represents the first new occupational disease to be described in this decade [39]. Researchers in this field have shown that workers who contract COVID-19 as an occupational disease should be entitled to medical treatment based on their healthcare needs, with the financial burden for this treatment borne by the government through health benefits, including cash and disability benefits [40]. Furthermore, several studies have demonstrated that many jurisdictions have recognized COVID-19 as an occupational disease on a case-by-case basis [15, 42]. In fact, just over half of the 98 jurisdictions examined have officially acknowledged COVID-19 as an occupational disease through a formal regulatory process [17]. Cooney, S. et al., demonstrate that some countries are reluctant to categorize COVID-19 as a work-related disease due to the challenges in determining its financial implications on compensation systems [14]. This reluctance stems from the fact that COVID-19, similar to the flu, can be contracted outside the workplace [14]. Since many governments have introduced temporary financial support packages, some may have believed that invoking the provisions related to occupational diseases was unnecessary and overly burdensome [14]. However, attempting to resolve compensation concerns through alternative methods does not address other important aspects like risk assessments, rehabilitation, and compliance, which are integral components of the conventional approach to dealing with occupational diseases [14].

Consequently, there is a growing movement towards recognizing COVID-19 as an occupational disease. As an illustration, the European Commission is currently in the process of updating its Recommendation on occupational diseases to include COVID-19, particularly within the realms of health and social care, domiciliary assistance, and in situations of pandemic outbreaks within sectors carrying a proven risk of infection [43].

This trend is not exclusive to the European Union. In Colombia, COVID-19 has been officially designated as an occupational disease for healthcare sector employees [44]. Similarly, in California, legislation now incorporates the presumption that COVID-19 is work-related when determining workers’ compensation claims [45]. Japanese authorities have also issued comparable administrative guidance in this regard [14].

Numerous countries, including Argentina, France, Norway, and South Africa, have made amendments to their legal frameworks to officially recognize COVID-19 as a work-related disease. Italy, on the other hand, has recognized it as a work-related or occupational accident [15]. Switzerland, Sweden, and Spain are among the countries that have formally acknowledged the possibility of COVID-19 infection being classified as a work-related disease or injury, particularly for healthcare and other front-line workers [37]. In certain countries like Czechia, Estonia, and the UK, there are no specific regulations, but COVID-19 infection can be considered an occupational disease if the general conditions outlined in the law are met [37].

Denmark has provided coverage for hospital and homecare workers from the outset due to the nature of their work. Additionally, daycare employees, parking attendants, and individuals with frequent close contact with the public have been explicitly mentioned. In these cases, the assessment of infection risk is primarily based on the description of the work and the level of contact with people [37].

Japan, Belgium, and the Republic of Korea have declared their recognition of COVID-19 infection as an occupational disease, subject to a predefined set of conditions [46, 47]. Given that front-line workers, particularly healthcare workers, face the highest risk of exposure to the COVID-19 virus [48], Germany has acknowledged it as a potential work-related disease, particularly for healthcare workers [49, 50]. A study praises Germany and the Nordic countries for their existing legislation on infectious diseases, which automatically provides sick leave, wage replacement, and medical care for workers who contract COVID-19 [51]. The recognition of COVID-19 infection as a work-related disease in Malaysia became publicly known through media coverage [15].

Numerous other nations, including Singapore, Taiwan, and the People’s Republic of China, have indicated their probable recognition of COVID-19 as per their existing workers’ compensation systems [15]. Australia has also proposed potential compensation measures, subject to case-by-case assessment [15]. In Brazil, the situation regarding the recognition of COVID-19 as a work-related disease became complicated when legislation was published stating that the disease would not be deemed work-related until a causal link could be proven. However, this regulation was subsequently postponed by the Federal Supreme Court due to the widespread prevalence and impact of the infection [15]. In Belgium, COVID-19 infections among healthcare workers have been included in the list of recognized work-related diseases, and specific occupations with a higher risk of exposure and infection have been identified [47].

Furthermore, recent research suggests that COVID-19 long-term symptoms, commonly referred to as “long COVID,” should be considered as an occupational disease [52]. However, the recognition of “long COVID” as a work-related disease raises significant questions. These include how to identify “long COVID,” determining the threshold for symptom intensity and duration, the need for objective tests, and the burden of proof required to establish an occupational relationship [52]. Addressing these questions would require a separate body of literature and investigation. Therefore, this study has excluded the discussion of “long COVID” as a work-related disease, and it is recommended that it be explored in a separate research endeavor.

5 Condition to consider occupational disease

The essential requirement for considering an occupational disease is that the disease, injury, or accident must arise out of and occur during the course of employment. In such cases, victims or their families are entitled to compensation under the workmen’s compensation legislation practiced in various countries. Thus, there exists a close relationship between employment injury or disease and compensation, with compensation being awarded only when the injury or disease is work-related.

To maintain a concrete and precise discussion, this manuscript will analyze legal decisions within the context of Indian jurisdiction. This choice stems from the historical background of the Indian subcontinent, which was once a single jurisdiction comprising India, Pakistan, and Bangladesh, all under British rule. During this period, British rulers enacted numerous legislations that continue to be practiced, with minor modifications, in these respective jurisdictions. For instance, the Workmen’s Compensation Act of 1923 was enacted by the British rulers and is still in practice with the same name in India and Pakistan. However, Bangladesh repealed this Act and introduced new labor legislation in 2006. Nevertheless, the new legislation in Bangladesh includes provisions similar to those found in Chapter XII of the original Workmen’s Compensation Act of 1923.

While it is evident that many workers have succumbed to the COVID-19 infectious disease during their work, finding lawsuits claiming compensation against employers or companies proves challenging. Therefore, this manuscript examines analogous situations that have been interpreted and adjudicated by competent courts.

In a recent case in 2022, [53] a worker named Devki Nandan experienced severe chest pain while performing his duties and collapsed. He was immediately taken to Malerkotla Hospital, where he was pronounced dead by the attending doctor. The medical document provided by the doctor stated that the cause of death was a “massive heart attack.” Following her husband’s death, the widow filed a claim for compensation from the company, submitting all the necessary documents. However, the company responded by asserting that a “heart attack” does not fall within the scope of employment injury or disease, and therefore, no compensation would be provided.

Feeling aggrieved, the widow filed a complaint with the District Commissioner (DC). After a thorough review of the relevant documents and a fair hearing, on April 12, 2021, the DC issued an order, as reproduced below in Para 12.10:

“12.10. Based on the discussions above, we allow the complaint and direct Ops number 1 and 2 to provide benefits, including pension, to the complainants. We further instruct them to pay the complainants the arrears with interest at a rate of 9% per annum. Additionally, we direct Ops number 1 and 2 to pay the complainants Rs. 10,000/- as compensation for mental tension and harassment, and an additional Rs.10,000/- as litigation expenses.”

Displeased with the decision, the opposing parties (the company) filed an appeal with the High Court (HC) to address the central issue of whether Devki Nandan’s death occurred during the course of employment and whether a heart attack could be considered an employment injury. Upon reviewing the case, the HC took into account previous court rulings, relevant national legislation, including the Employees’ State Insurance Act, 1948 (specifically Section 51-A), and international instruments such as the Universal Declaration of Human Rights (UDHR 1948) (specifically Article 1). After careful consideration, the HC determined that Devki Nandan’s death indeed occurred during the course of employment and upheld the DC’s decision, granting the widow compensation and all necessary benefits.

This decision opens up a discussion regarding the connection between a sudden heart attack and a work-related disease or accident. It is important to note that attributing heart disease solely to occupation may not be a straightforward task [54]. Rather, heart disease can be influenced by multiple factors or a combination thereof. For instance, workers’ lifestyles and dietary habits can contribute to high cholesterol levels, and there may also be underlying hereditary factors at play [55]. Moreover, the formation of a clot in the heart vessels, which leads to a heart attack, often occurs over an extended period.

Nevertheless, the court sought to establish whether there was any connection between the disease and the occupation. In cases where a worker with pre-existing heart disease succumbs to a heart attack due to the stress of continuous standing or walking during work, the accident can be deemed to have arisen out of employment [56]. Even if a deceased worker’s heart attack can be attributed to multiple contributing factors, including non-occupational ones, the occupation itself may have played a role (albeit to some extent) in triggering the heart attack. Such a connection may be sufficient to classify it as an occupational disease.

Furthermore, the specific locations where incidents occur may not be decisive in determining whether an occupational disease is present in certain situations. What matters is the existence of a causal connection between the disease and the employment, as well as whether the workers were engaged in activities reasonably incidental to their employment, regardless of the actual place of the accident [57, 58]. So, it can be said that the physical workplace is not crucial in determining whether an incident falls within the scope of employment. Even if an employee is working at a location where they have no formal right to be, they should not be deprived of compensation for workplace accidents or diseases if they were performing the duties for which they were hired.

The essential factor to consider is whether the workers were carrying out the tasks assigned to them. The specific place or location of their work is irrelevant. However, if workers engage in tasks that are not part of their ordinary duties for the employer and involve additional risks, employers cannot be held liable for the hazards arising from those tasks. When workers willingly expose themselves to risks not directly related to their employers’ business but for personal reasons, such activities would not be considered within the scope of employment and would fall under the “doctrine of added peril, ”; for which employers would not be held responsible [59].

In terms of COVID-19 infections, as mentioned earlier, obtaining specific judicial decisions on this matter is still in its early stages. However, in similar circumstances, previous judicial rulings have provided a broader understanding of diseases or injuries that fall within the scope of arising from employment. Therefore, COVID-19 can be interpreted as an occupational disease for various reasons, even if individuals are working from home or in a designated workstation. The key factor to consider is whether the individuals contracted the infection as a result of their occupation. Despite the closure of many physical workplaces during the pandemic, individuals were often required to work from home. Consequently, it can be logically argued that their work from home is directly related to their occupation. Thus, if they become infected with COVID-19 during their work from home, it would be considered a work-related disease and make them eligible for compensation. It is worth noting that workers’ physical presence, whether at the workplace or while commuting between their home and workplace, could also be considered within the scope of occupational diseases if they contract COVID-19. The court will examine whether there is a significant connection between the disease and the nature of the occupation. Therefore, it is crucial to establish whether there is a clear connection between the disease and the individual’s occupation.

Unlike the Devki Nandan case, in a recent case in July 2022 [60], the deceased worker, Paramasivam, was involved in unloading leather goods from a truck. He subsequently sought permission from the security officer to enter the office and obtain the delivery receipt. Suddenly, he fell ill and quickly lost consciousness. He was immediately taken to the hospital, where the doctor pronounced him dead due to a sudden drop in blood pressure. The Madras High Court, in its appeal, attempted to establish a link between his death and his occupation. However, the court did not find any causal relationship between the two. Consequently, the court concluded that the worker’s death was unrelated to his employment.

In contrast to the aforementioned case, COVID-19 is an infection that can arise from work-related physical exposure [61]. As mentioned earlier, it can occur during commuting or even while individuals are working from home. Therefore, the crucial factor is establishing a connection between the disease and the occupation, which is particularly relevant in the context of COVID-19 infection. In line with this principle, the “doctrine of added peril”; also applies when a worker is performing their duties at the time of the accident, regardless of the location [62].

The phrase “arising out of employment” signifies that there must be evidence to demonstrate that employment is a contributing factor (whether substantial or not) that has accelerated the death or caused the disease in conjunction with the employment. In general usage, the phrase “in the course of employment” indicates that the disease or injury occurs within or during working hours [63]. The question that arises is: How can one determine whether an injury or disease arises out of and in the course of employment? It has been established that an injury is deemed to have originated from and occurred during employment if it can be demonstrated that the accident had its source in the employment, there was a causal connection between the accident and the employment, and the workers were engaged in activities reasonably incidental to their employment, regardless of the actual location of the accident [57, 58].

In the specific case of Bajaj Allianz General Insurance vs Preeto Devi and Others, 2013 [63], the deceased individual was a driver. He commenced his journey on November 19, 2009, and arrived at his destination on November 21, 2009. On the same day, the deceased and others disembarked from the truck. The deceased went to answer the call of nature, during which he experienced a heart attack and passed away. After the trial, the claim petition was accepted, and the insurance company was deemed liable to pay compensation. Dissatisfied with the decision, the insurance company filed an appeal to the Punjab-Haryana High Court.

The insurance company argues that there is no evidence on record to demonstrate that the worker’s death was a result of the stress and strain of work endured within the scope of his employment. It has not been established that the employee was performing any work related to his employment at the time, as he was simply attending to his bodily needs. Consequently, the provisions of Section 3 of the Workmen Compensation Act do not apply. Therefore, it is likely that the claim made by the legal heirs of the employee will be denied.

In order to adjudicate the case, the appellate court examined the contested issue of whether the injury in question was the result of an accident or a work-related disease “arising out and in the course of employment.” The court provided a thoughtful analysis of the meanings of “personal injury” and “arising out of and in the course of employment.” The term “personal injury” refers to an injury that arises out of and occurs during the course of employment, and is sustained by a worker. The expression “arising out of employment” indicates that there must be evidence to establish that employment is a contributing factor, has hastened the death, or that the death was caused by an illness in connection with the employment. Generally, the phrase “in the course of employment” suggests that the accident will take place within or during the period of employment, with the specific location being immaterial.

Considering the above facts and circumstances, it can be argued that COVID-19 may be interpreted as an occupational disease if workers contract it while working from home, during their commute, or at their workstation.

6 Conclusion with recommendation

Estimating the percentage of occupational deaths or injuries caused by workplace accidents or infectious diseases during the COVID-19 pandemic can be misleading, as we currently lack comprehensive data on the number of coronavirus cases that are work-related [42]. However, a study conducted in 2017 shed some light on the matter, revealing that approximately 2.4 million deaths were attributed to occupational diseases, with accidents accounting for 14 percent and infectious diseases for 9 percent of these fatalities [64]. It is worth noting that the number of deaths and casualties resulting from infectious diseases, including COVID-19, may be significantly higher than the figures estimated in 2017 due to the ongoing pandemic.

As we near the end of the COVID-19 pandemic, it becomes our moral responsibility to assess whether COVID-19 infections should be classified as work-related diseases and provide compensation to affected workers or their families [47]. While the ILO does not explicitly mention COVID-19 infection as an occupational disease, it can be logically interpreted as such within the framework of the ILO. The ILO’s List of Occupational Diseases 2010 serves as a crucial reference for member states in recognizing COVID-19 infection as an occupational disease in their national legislation [64].

The ILO provides guidance that infectious diseases or similar conditions arising from occupational factors should be classified as occupational diseases. Considering that COVID-19 is an infectious disease, it can be interpreted as an occupational disease. However, it would be preferable for the ILO to explicitly include COVID-19 infections or any pandemic as occupational or work-related diseases in their official listings. Given that national-level actions are often based on the guidelines and instructions of the ILO, a clear direction from the ILO on the recognition of COVID-19 infection as an occupational disease is essential. Any ambiguity from the ILO could lead member states to delay their decisions regarding whether this type of infection should be considered a work-related disease. In line with the ILO, other relevant stakeholders should advocate for legislative amendments in countries that are awaiting laws to recognize COVID-19 infection as a work-related disease [15]. Furthermore, international and regional organizations, such as the World Health Organization and the European Union, should undertake studies on work-related diseases and recommend the recognition of COVID-19 infection as a work-related disease. This would provide a basis for country-specific regulations to address any legislative gaps.

Drawing on previous legal decisions concerning work-related or occupational diseases, there is a basis for categorizing COVID-19 infection as an occupational disease or injury. Therefore, in light of the ambiguity from the ILO, these legal decisions can serve as a solid foundation for declaring COVID-19 infection as a work-related disease.

Although many countries currently do not officially recognize COVID-19 infection as an occupational disease, it is crucial that they include it in their national legislation as a work-related disease. This recognition would ensure that deceased or affected workers and their families are eligible for compensation [42]. By taking such an initiative, countries can address the existing legislative gaps concerning COVID-19 infection and occupational diseases. It is important to remember that laws should not remain static; they should be adaptable and responsive to the needs of the people and stakeholders they serve. Failure to update legislation in a timely manner may result in a lack of justice for the affected individuals and the wider population. To achieve uniformity among all states, it is necessary to develop comprehensive guidelines on this issue from the United Nations and its specialized agencies. A holistic, collaborative, and unanimous approach is essential in tackling the current problem and preparing for future pandemics.

7 Strengths and limitations of the study

The study’s examination of regulatory gaps has the potential to shape policies that prioritize both worker well-being and business operations. By pinpointing deficiencies in current regulations related to COVID-19 transmission at workplaces, this research lays the groundwork for refining occupational health and safety frameworks. In a broader context, it contributes to global discussions on public health, labor rights, and social justice.

The study’s investigation into classifying COVID-19 infections as occupational diseases or injuries is a vital step in enhancing our understanding of work-related health risks during the pandemic. Its analysis and proposed solutions can significantly impact policy-making, leading to a safer, fairer, and more resilient work environment. However, it is important to note that this study is limited to discussing the classification of COVID-19 as a work-related occupational disease or injury.

Declaration

Ethical approval

‘Not applicable’.

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Conflict of interest

The author declares that there is no conflict of interest with the content of the manuscript.