Employer’s criminal liability in the case of a work accident highlights the importance of prioritizing safety and health measures in the workplace and underscores the consequences that may arise from failing to implement and adhere to measures to prevent any work-related accidents.

A work accident entails the violent injury to the body or acute professional intoxication that occurs during the work process or while performing duty obligations, resulting in temporary incapacity for work of at least 3 calendar days, disability, or death.

Among work accidents are included:

• accidents suffered by individuals visiting the company or establishment with the employer’s permission.
• accidents caused by activities unrelated to the work process, if they occur at the legal entity’s premises or the physical address of the employer, or at another workplace organized by them during working hours, and are not solely due to the fault of the injured party.
• accidents occurring during travel from the legal entity’s premises or the individual’s address where the victim is employed, or from any other workplace organized by them, to another legal or physical person, for work tasks, during normal travel time.
• commuting accidents, if the travel was made during and on the normal route from the worker’s home to the workplace organized by the employer and vice versa.
• accidents occurring during regular breaks if they occur in places organized by the employer, as well as during and on the normal route to and from these places. Etc.

According to Article 175 of the Labor Code, combined with Article 6 of Law no. 319/2006, the employer is obliged to ensure the safety and health of employees in all work-related aspects, and their legal liability will be engaged even if they resort to outsourced individuals or services to develop occupational safety and health procedures. The obligations of employees cannot diminish or eliminate the employer’s responsibility in this regard.

The majority of work accidents consists in the employer’s unlawful actions, which involve failing to implement safety and health measures or disregarding them. These two offenses are stipulated in Articles 349 and 350 of the Criminal Code and constitute offences of danger. In this case, it is not necessary for a work accident to occur for someone to face criminal liability for failing to implement or adhere to occupational safety and health measures.

Regarding liability for non-compliance with legal provision for health and safety at work, responsibility can be attributed both to legal entities and individuals, such as administrators or individuals designated as responsible for implementing legal measures for safety and health at work. These two types of liability are not mutually exclusive.

These offenses can be committed intentionally or through negligence. Negligence occurs when the employer designates a person to fulfill legal obligations regarding safety and health measures at work, but this person fails to fulfill their obligations, and there is repeated negligence on the part of the employer in supervising the employee’s activities. The offense is committed intentionally if such a person was not designated in the first place.

For the employer’s criminal liability to be triggered in the case of work accidents, there must be an action or inaction attributable to them, and there must be a causal link between the action and the accident.

Additionally, in the case where a work accident involves a traffic accident resulting in temporary incapacity for work of the employee, the employer is obligated to investigate the incident to determine the circumstances and causes that led to it. When the accident results in the employee’s death, the incident will be investigated by the Labor Inspectorate. In both cases, the investigation results will be recorded in a report, and depending on the situation, other authorities may be involved.

Moreover, the employer whose employee was involved in a traffic accident resulting in casualties (who are not employees of the company or any other employer) may appoint a commission to investigate the incident, especially if the responsibility for the traffic event has been attributed to the driver or if there is a possibility that it occurred due to a vehicle malfunction. This document will be useful (and requested) following the investigation of the traffic incident, subsequently for the conduct of a technical judicial expertise, if necessary.

Work accidents must be reported to the Labor Inspectorate by the employer. However, if the employee-driver did not sustain injuries requiring sick leave and if the victims in the other vehicle who suffered injuries are not employees, then the incident does not need to be reported to the Labor Inspectorate, and it is not registered as a work accident.

In conclusion, it is crucial to properly and comprehensively develop occupational health and safety measures and adhere to them correctly so that the employer can be exempt from liability in the event of a work accident. 

Otherwise, responsibility will be attributed to the person responsible for implementing legal measures for safety and health at work, to the person who leads, organizes, and controls the work process, as well as to anyone else who has the obligation to comply with safety and health measures at work.

Author: Atty. Felicia Cioflan