29 Jun Covid-19 and the liability of employers
The recent Covid-19 pandemic has revolutionized the ways in which companies manage their workforce. With the beginning of “Phase Three” and the reopening of production activities, the prescriptions introduced over the last months have begun to take full effect and companies will increasingly have to face these requirements head-on.
But how should employers deal with risks and prevent the spread of contagion in the workplace?
The provisions that have followed the emergency in recent months are both numerous and heterogeneous. Here we will attempt to provide some clarity.
Covid contagion as a workplace “accident”
First of all, it is important to remember that Inail circular n. 13 of 3 April 2020 provided operational indications to be followed in cases where employees contracted Covid-19 during their work activities, following the entry into force of article 42, paragraph 2, of Decree Law n. 18 of 17 March2020, converted with amendments by Law n. 27 of 24 April 2020, which established that if the infection is contracted during work time that it is considered by Inail as a workplace accident and that such protections are indeed in place even in this pandemic situation caused by a widespread risk of contagion for the entire population.
Practical implications for the employer
Inail has equated the SARS-Cov 2 contagion with other hypotheses of infectious pathologies contracted during work time, thus equating the “virulent cause” to an accident.
In the circular mentioned above, Inail explains in which cases damages are to be compensated specifying that, for the healthcare professionals who are exposed to high risk of contagion, there is a simple presumption of professional origin of the contagion, considering the high probability of those people being exposed to the new coronavirus. Other work activities involving constant contact with the public/users may also be at a high risk, for which, similarly, the above-mentioned presumption applies. In addition to those activities, there are other cases which might be protected, even where the evidence of specific contagion episodes or any of “serious, precise and concordant” risks are present. In the case of contagion, Inail has extended insurance protection also if the contagion takes place in itinere, equating the coronavirus contagion with the hypothesis of a work accident (which also covers accidents that occurred on the way to/from the place of work).
Despite what is mentioned above, Inail integrated its first circular with circular n. 22 of 20 May 2020 which clarifies that, in the case of the right of compensation from the Institute, this is not relevant itself in the criminal and civil seats. In particular, it is stated that in the case of injury compensated by Inail, in order for the employer to be criminally liable, the Prosecutor has to demonstrate the existence of causation between the accident and the absence of prescriptions/protocols to prevent the risk of contagion and that it is not enough in itself that the contagion occurred in the workplace. Instead, the Prosecutor has to prove that the employer culpably failed to apply the necessary precautions to prevent the risk of contagion.
231 and risks
What is stated above also has an impact on the updating of the Company’s Organisation and Management Models drawn up pursuant to Legislative Decree 231/2001 (hereinafter “Models”). In fact, on June 10th, Confindustria published an Opinion Paper in which it clarifies the obligations in accordance with Legislative Decree 231/2001 and the companies’ responsibilities in the actual pandemic situation. In particular, Confindustria has made it clear that, in the face of “indirect” risk of contagion which can be understood simply as increasing areas of risk exposure with respect to those already mapped by the Models (for example, risk of corruption, anti-money laundering, computer crimes, etc.), there is a so-called “direct” risk linked with the employee’s protection against accidents at work. That risk should also be adequately covered by the Model because pursuant to article 30 of Legislative Decree 81/08, “the Organisation and Management Model suitable for an effective exemption from the administrative liability of legal persons, companies and associations, including those without legal personality, pursuant to Legislative Decree no. 231 of 8 June 2001, must be adopted and effectively implemented, ensuring a company system for the fulfilment of all legal obligations” (not official translation). Relevant obligations are detailed in the first paragraph of article 30 of the Legislative Decree mentioned above.
In fact, also before this epidemiological emergency, health and safety offences were already considered crimes that assumed the administrative liability of entities (in particular, we refer to bodily injury offences and manslaughter committed in violation of accident prevention regulations, pursuant to articles 589 and 590 of the Italian Criminal Code). Therefore, the employee’s exposure to the risk of contagion in the workplace imposes, for the employer, (also) in accordance with the protection envisaged in the 231 Model, the obligation to put in place adequate measures to protect employees from such risk, pursuant to article 2087 of the Italian Civil Code.
In view of the above, the Covid-19 emergency in itself won’t require updating Model if it is already appropriate and effective; this without prejudice to the hypothesis that it must be updated with specific protocols in the areas of the health and safety in the workspace, as it will be necessary to “implement the underlying management system: it is at this last level that companies will have to assess, for example, the advisability of an addendum to the risk assessment […], with the consequent adoption of the relevant preventive measures” (not official translation – see page 5 of Confindustria’ Opinion Paper mentioned above).
Another point of attention regards the flows to the Supervisory Body in view of the possible exceptional intensity and/or frequency of exposure to the risks already mapped. In particular, with regard to what is stated above concerning “direct” risk to health and safety, the Supervisory Body, as noted, has the responsibility to supervise the functioning and observance of the Model [which] translates – pursuant to Article 30 of Legislative Decree 81/08 – in verifying that the company system keeps pace with (i) the natural phenomenon (ii) the emergency regulations (iii) the extra normative indications, meaning the protocols between the Government and the ‘social’ partners, the circulars of the bodies involved in the management of the emergency, the good practices shared (not official translation).
To this effect, the Supervisory Body shall maintain close contact with all the parties called to: i) adopt the Protocols written following the provisions of the Authorities; ii) carry out operational checks on the effective compliance with these precautions, including first and foremost with the internal committee, which must – as we see hereafter – be established to verify the respect of the protocols adopted by the company. In order to that, a suitable information flow to the Supervisory Body should be set up or intensified. Moreover, the Supervisory Body will have to verify the adequacy of the aforementioned protocols and the supervisory activities carried out will have to be reflected in reports. In this sense, could be useful to prepare a check-list on compliance with containment measures to be periodically filled in and to share the adequate information between the different subjects involved.
What to do?
Employers will have to take action to avoid culpable liability for the injuries caused to employees and therefore introduce all the protective measures necessary to prevent the risk of contagion. In order to that, first of all, it is necessary to integrate the risk assessment document foreseeing a specific evaluation of biological risk of Covid-19 contagion. This addition will be evaluated also by the Supervisory Body.
But how does integrate the risk assessment document? On this point, the National Labor Inspectorate is clear in stating that is not possible that employer identifies the risk index of an unknown disease and therefore the task of employer is limited to the scrupulous implementation of the measures that the authorities have adopted and will continue to adopt, as well as to the vigilance aimed at ensuring that workers adapt to these measures.
Therefore, employers may be exempt from civil and criminal liability if they demonstrate to have adopted all the measures prescribed by the Authority which are unique in the face of an unknown epidemiological reality, to give the correct indications to prevent the diffusion of the contagion. These include the obligations of: (i) information: all the employees and everyone who enters the company premises shall be informed about the dispositions of the Authorities and about the measures adopted by the employer, by way of notices that can be either delivered or affixed in the workspace; (ii) daily cleaning and sanitization of the environment; (iii) adoption of personal hygiene precautions and personal protective equipment; (iv) management of the common spaces (for example, the canteen, smoking areas) and respect of interpersonal distances; (v) definition of different business organization (rostering, travel, and smart working); (vi) regulation of the entrance and the exit of the employees and suppliers; (vii) limitation of internal movement, meetings, etc.; (viii) correct management of cases of a symptomatic person in the company; (ix) continuation of health surveillance, in collaboration with the competent doctor and the RLS (Workers’ Safety Representative).
Moreover, as stated above, we suggest the creation of a Committee for the application and verification of the rules of the protocol, with the participation of trade union representatives and of the RLS, if present.
Such Committee will be called upon to evaluate the necessity of updating the adopted protocols should the Public Authority’ prescriptions change. These activities must then be reflected in adequate reports indicating the controls implemented and the results of the controls, guaranteeing also the traceability of the activities carried out.
In brief, (i) a business protocol which specifies the measures introduced should be written; (ii) all individual activities carried out and decisions taken by the employer to implement such measures must be documented in writing (for examples minutes and records), (iii) information addressed to employees should be collected, as well as (iv) the reports drawn up by the bodies responsible for checks on compliance with the new procedures. This protocol will be also integrated together with the others introduced by the employer in the Model to prevent the commission of crimes which are also relevant for Decree 231.
In the context of the health emergency, it is important to address corporate compliance at all levels to enable the employer to avoid liability.
In fact, in the light of the considerations made in order with the extraordinary and unpredictable nature of the actual pandemic and with the absence of the necessary technical-scientific competences of the employer, coherently with what has been established by Confindustria and Inail, it is reasonable to argue that the employer and the company should not be held liable, also in terms of 231, if they have adopted and concretely introduced the anti-contagion measures prescribed from the Public Authorities to prevent the pandemic risk. It goes without saying that only future case law will be able to confirm this assumption.
 Article 42 of Decree Law no. 18 of 17 March 2020, paragraph 2, states: “that in the ascertained cases of coronavirus infection (SARS-CoV-2) at work, the certifying doctor shall draw up the usual accident certificate and send it electronically to Inail, which ensures, in accordance with the provisions in force, the relative protection of the injured party. Inail’s benefits in proven cases of coronavirus infections at work are also provided for the period of quarantine or mandatory quarantine of the ‘injured’ person with the consequent abstention from work. The above-mentioned accident affect the insurance management and are not taken into account for the purposes of determining the fluctuation of the average accident rate as per articles 19 et seq. of the Interministerial Decree of 27 February 2019. This provision shall apply to public and private employers” (not official translation).
 See p. 4, Duties and areas of activation of the Supervisory Body in relation with the contagion risk, https://www.aodv231.it/images/pdf/3672-10-PP%20OdV%20e%20Covid-19%20Rev.1.pdf (document in Italian).
 The workers’ safety representative (RLS) is defined from D. Lgs. 81/08 as the person elected or designated for representation of workers with regard to the aspects of health and safety during work time.