Comment

I. The issue at hand.

The issue addressed by the ruling discussed in this commentary concerns the grade be assigned to a heart condition (in this case, cardiogenic shock resulting from an acute myocardial infarction) that led to the death of an employee who was working modality home. Specifically, the issue at hand is whether this condition should be classified as work accident work on the grounds that it was related to the performance of work duties) or as a common illness (on the grounds that it would then be considered a purely domestic circumstance).

II. The framework for reference letter: The Presumption of a workRelated Accident.

In grade specific grade or a work accident, the framework for reference letter established by the provisions of article of the General Social Security Law ("LGSS") and, more specifically, by the provisions of its section :

"3. Unless test , work sustained by a worker during work hours and at the workplace shall be presumed to constitute work accident."

As can be seen, what is at stake in cases such as this one is whether or not the presumption that the accident occurred in the course of employment—expressly provided for in the aforementioned article —applies.3 LGSS, although there is no specific provision to that effect in Law 10/2021 of July 9 on work (“LTD”), nor is there any provision preventing the application of such a presumption to a person providing services under a teleworking arrangement (even if the condition in question is a heart condition):

"As a general rule, it should be noted that there is no rule this presumption from applying to accidents suffered by teleworkers. This presumption is intended to be general in scope, as subject is not subject to any subject or limitations other than those expressly provided for by the legislature."

That being the case, in the context of telework, the second of the elements required by the legal presumption—namely, the place of work—is not usually disputed. This is essentially because the place of work the location where the employee is performing services or where they are present for the purpose of performing services, as is the case with telework when services are provided from home. Conversely, in this context, the first of the two elements required by the legal presumption is often more contentious; that is, the time of work. Hence the importance of knowing the schedule :

"To distinguish between the workplace and the home environment in order to differentiate between a work accident work a domestic accident, the spatial element does not usually pose a problem, as it coincides with the teleworker’s residence. The controversy arises in relation to work hours. Therefore, in these situations, it is essential to know the schedule , without prejudice to its flexibility, which may, where appropriate, be subject to further consideration."

III. Determining work hours work the context of telework.

Admittedly, the LTD does not contain specific provisions subject work accidents. However, since the second of the elements required by the legal presumption (place of work) is not typically disputed, it may be useful to refer to it to define the first of these elements ( work hours). In this regard, conference room refers to Articles 13 and 14 of the LTD to remind us of a series of general considerations regarding the work hours work those who provide their services modality telework:

"Remote workers may adjust the established schedule in accordance with the terms set forth in the work agreement , while complying with the provisions of the collective bargaining agreement and the legally and contractually established limits on workshop minimum rest periods. The work agreement may establish time slots or periods of availability , which entails the worker’s obligation to provide services during those time slots or periods (Art. 13 LTD)."

"Workers who provide services under this modality subject to the same workshop regulations workshop workers who provide services at the business premises. Furthermore, there is no other rule—nor does Royal Decree 1561/1995 of September 21 on conference work conference —that provides for an exception for this group of workers. Consequently, although teleworkers have the flexibility to organize their own work time, work adhere to a availability schedule and comply with the record-keeping requirement set forth in article .9 of the Labor Code."

However, determining the exact work schedule work teleworker is by no means a simple task. This is even less so for the purposes discussed here. Therefore, in order to assign the burden of test the " work time" element, the conference room rely on the following conceptual definition:

(i) Online telework:

"If the business the physical space (in this case, the workplace) and the work schedule work online (that is, through a direct connection to a central system), the burden of test these two elements falls on the employer, since they fall within the employer’s sphere of control and decision-making. This is because the employer can use electronic or computer-based systems to determine and specify the work schedule."

(ii) Offline telework:

"On the other hand, when work be performed offline (without an internet connection), the employer’s ability to monitor the situation is limited; and if the schedule not fixed, the burden of proof that the accident occurred during work hours generally falls on the employee."

IV. The resolution of the case.

In light of the foregoing, and taking into account the specific circumstances (and no others) of the case at hand—and, in particular, the fact that the teleworker’s flexible schedule was significantly restricted— conference room the Supreme Court ultimately upheld the ad hoc application of the presumption that the accident was work-related, as provided for in article .3 of the General Social Security Law:

"Although the claimant’s telework modality is closer to model than to the ‘online’ model, nevertheless, while what might initially determine the burden of test qualified factual basis work hours (…), it must be borne in mind that, although she had specific workshop and daily workshop , the flexibility of her hours was limited, which works in the teleworker’s favor (…)

In the case at hand, the concept of work time” work vague and cannot be interpreted in a way that disadvantages someone like the employee, who works remotely according to schedule and with very limited flexibility (…).

In the case at hand, the reasonable doubt expressed in the appealed judgment regarding whether the death occurred during work hours does not justify placing the burden of test that circumstance on the teleworker. There are other circumstances that demonstrate that, despite the flexible work schedule, there is solid and conclusive evidence showing that the death occurred during work hours. Therefore, the presumption under article .3 of the General Social Security Law (LGSS) applies, which could have been rebutted by test the contrary.

"That test , as we have indicated, has not been presented. Therefore, since the cardiovascular episode occurred while the worker was teleworking, and applying the presumption set forth in article .3 of the General Social Security Law—which has not been rebutted, in accordance with the case law cited above—the death must be classified as constituting a work accident."

V. Conclusions.

First: There is no provision preventing the application of the presumption that an accident is work-related, as provided for in article .3 of the General Social Security Law (LGSS), to individuals who work remotely; this applies even if the condition in question is a heart condition.

Second: If telework is conducted online, the burden of test time-related element ( work hours) that forms part of the presumption of employment under article .3 of the General Social Security Law (LGSS) falls on the business or the managing or collaborating entity), since it is within the employer’s control and discretion to use electronic or computer-based means to determine and specify the work schedule.

Third: If the telework is performed offline, the burden of test aforementioned time-related element falls on the employee (or their heirs), since the employer is unable to monitor the work.

Fourth: In any event, the grade a professional or not in the context of the specific situation at hand must be based on the specific circumstances of each individual case.

VI.- Final note.

Regardless of the grade of the incident as a work accident work the case at hand, there are two issues that lend extraordinary significance internship the ruling under discussion:

1st) First, the legal principle established by conference room of the Supreme Court regarding the requirement of adversarial proceedings in appeals for the unification of doctrine when it comes to defining the scope of coverage for cardiovascular diseases. Although this is a strictly procedural matter, the fifth legal ground of the judgment in question warrants close enquiry; particularly for those seeking to file appeals in cassation for the unification of doctrine involving similar issues, but also for anyone seeking to overcome the requirement of contradiction in different cases. Undoubtedly, the articulation of this jurisprudential doctrine is what ultimately justifies the fact that we are dealing with a judgment handed down by the plenary session of the Executive Council the conference room.

2) Second, the conceptual distinction made by conference room subject work hours, work between “online” and “offline” telework. While this distinction is made for the purpose of determining the temporal element ( work hours) of the legal presumption set forth in article .3 of the LGSS, it may have a much broader scope. In particular, this applies to all matters concerning the definition of work time work the context of telework (e.g., workshop work workshop , work schedule , workshop record, workshop adjustment, workshop , etc.).