after ruling against ART, alert by wave of lawsuits

Justice held an Occupational Risk Insurer responsible for the health of a medical worker against an eventual spread of coronavirus, and opened the door to claims to the ART of workers of all essential activities.

The Union of Occupational Risk Insurers (UART) came out to clarify that it will only take charge of cases where it is verified that the disease contracted for a direct and immediate cause of the execution of the work.

The lawyer Gonzalo Dabini, legal advisor to the UART, told iProfessional that the case of health workers This is where the direct relationship between performance in the workplace and contagion with coronavirus will be “more verifiable” in certain cases.

A ruling by the Fair Labor Fair judge, Rosalía Romero, was a precautionary measure and constitutes a relevant precedent for the order the employer and the ART to urgently provide protection elements to a health worker, explained Roberto Semino, from the Semino Partners study.

Dabini clarified that the worker presented two requests, an amparo and an injunction. In the first, he requested that declared an occupational disease covered by the ART and in general by the protection against accidents at work to the coronovirus. And in the second, the provision of protection elements.

However, Judge Romero’s harsh sentence “abounds with arguments that could justify the responsibility of the ART for contagion of coronavirus from health workers,” Semino warned.

This judicial decision gives rise to the precautionary measure requested by a nurse from the Tornú Hospital, from the otorhinolaryngology sector, Carolina Alejandra Cáceres, and orders the employer, which is the Government of the city of Buenos Aires, to strictly comply with the delivery of Equipment Personal Protection (EPP).

But she does not enter into the fundamental question raised in the amparo, because the health worker is not infected with coronavirus, in fact, Dabini clarified.

The amparo must be complied with within 24 hours, without prejudice to the appeals that may be filed under the auspices of imposing fines on political officials if the measure of $ 10,000 per day is breached, Semino said.

In turn, the ruling orders the ART to arbitrate the necessary prevention and control means, in the same very short time, under warning of identical daily fines in the event of non-compliance.

However, the measure is dictated as urgent but provisional guardianship, and although it is plausible because it is the worker’s right, It is not yet the final sentence and can be appealed, Semino warned.

Among the fundamentals, Judge Romero points out that “the right to health and protection of the psycho-physical integrity of the person who works is achieved by various constitutional norms and international instruments that have the same hierarchy”, including those that even they refer to discrimination against women.

The Government of CABA or ART must deliver this worker, as ordered by Judge Romero, surgical chinstrap, camisole, gloves, eye protection and if procedures are carried out that generate aerosols, the use of chinstrap No. 95 recommended by the Ministry of Health of Argentina, which is what constitutes a PPE.

Dabini warned that the precautionary measure may be of arduous compliance since there are elements of PPE that are missing in the world or are difficult to obtain in the country.

For example, hospitals report that camisoles are missing, and they would not be getting items to buy them, among other scarce items, which if they were granted by the judges to all health workers, they would be absent for the most necessary cases.

The keys to failure

“The ruling is an important precedent, since although it is issued in an amparo process, so it benefits only Cáceres, it may have a exemplary and guiding effect for ART and health companies with respect to the rest of the workers in the sector“Semino remarked.

He also pointed out that the sentence does not differentiate between the position or role of the worker, but refers to “every health worker has a greater exposure to infection if his workplace is a health facility. “

In other words, not only doctors, nurses, respiratory kinesiologists, could request EPP equipment from the employer and the ART, but also any other that performs in person at the hospital, and that due to their role accredits or presumes a greater exposure to contagion of the coronavirus than any common worker, Semino added.

The ruling also It establishes an important principle when considering irrelevant that the coronovirus is not in the list of professional diseases to delimit the responsibility of the ART, since it argues that it is a new pathology, warned the specialist.

Dabini acknowledged, in this regard, that the coronavirus is not included in the list of occupational diseases due to its recent appearance, but stressed that it is a pandemic that affects not only people due to their nature as workers, but the whole world.

In any case, the judge affirmed that a duty of prevention, control and supervision regarding hygiene and safety in relation to the coronavirus prevails over the insurer, Semino said.

For the specialist, “the ruling establishes principles that will undoubtedly generate legal controversy in relation to other types of workers that they work in essential jobs excluded from the mandatory isolation that, due to their work, could have a direct and immediate exposure greater than the average to the virus and therefore to the contagion “.

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