INAIL conducted a study concerning the correct measures to adopt in the area of work organisation during the time of COVID-19 which later resulted in the “Technical document on the possible redesign of containment measures for SARS-CoV-2 in workplaces and strategies and prevention” (the “Technical Document”).

The Technical Document is aimed at providing the political operator, i.e. the Government, with information including of a statistical nature useful for making an assessment aimed at determining the progressive intervention priority levels on restarting production activities during the much heralded “Phase 2”, as well as intervention strategies to implement in workplaces.

The Document in question is mainly composed of two parts:

• the first part contains an analysis useful for defining the risk ambit and identifying where each worker is found according to their job;
• instead, the second dictates containment guidelines for workplace risk.

Examining the second part, the main measures mentioned therein are outlined below:

1. Organisational measures

The Technical Document recommends the importance of creating a redesign of spaces, work hours, organisation of shifts, as well as production processes in the workplace, aimed at social distancing and, in particular to:

• perform an analysis of work processes able to redesign work taking into account the distribution of tasks and organisation of shifts, as well as incentivising remote working where possible;
• redesign work stations where workers can work alone or which, in any case, do not require particular work instruments and/or equipment moving them into spaces obtained for example from conference rooms or unused offices and, alternatively, to use separation barriers such as plexiglass panels;
• redesign work hours in order to differentiate them in order to reduce the number of workers present in workplaces at the same time, as well as adopting mobility plans suitable for avoiding the use of public transportation in relation to travel to reach the worksite and return home, so-called commuting, for example incentivising different forms of transportation, including with private vehicles.

• Prevention and protection measures

In line with the risk assessment and management processes governed by Legislative Decree 81/2008, measures of a general and specific nature must be adopted commensurate with the SARS-CoV-2 exposure risk in workplaces, giving priority to primary prevention measures and, in particular:

• setting up a preventive information and training plan for workers concerning the risk from Covid-19 that primarily takes account of the importance of social distancing and individual compliance with protection measures, such as the recommendations provided by the World Health Organization (WHO), INAIL and Europeans Centre for disease prevention and control (ECDC);
• making soap dispensers available for the recommended frequent hand washing;
• performing mapping of all activities, normally requiring all workers to use personal protection equipment (PPE) supplied beforehand by the employer;
• in terms of companies where a company doctor is not present, extraordinary appointment of a specific company doctor should be assessed for the emergency period or alternative solutions, including through the involvement of local public healthcare facilities;
• for workers with verified immunosuppressed conditions, the possibility of expressing a “temporarily unfit to work” judgement should be carefully evaluated or limitations to their fitness to work for an adequate period with careful revaluation when it elapses;
• in order to ensure the progressive return of workers who were absent following Covid-19 infection, the company doctor, subject to presentation of certification of a negative test swab according to the procedures required by the competent local prevention department, will perform a “medical examination prior to returning to work” in order to verify fitness for the specific job.

• Specific measures to prevent activation of epidemic outbreaks

During the transition period, the risk of reactivation of outbreaks in workplaces needs to be considered, thus putting into place a series of measures aimed at contrasting them and, in particular:

• reinforcement of all hygiene measures already known and contained in the “Joint Protocol on regulation of measures for contrasting and containing the spread of the Covid-19 virus in workplaces” of 14 March 2020:
• a procedure must be implemented for checking the body temperature of workers, before they access the workplace, according to the procedures in the aforesaid “Protocol”;
• temporarily isolate people with a temperature over 37.5° and give them a mask.

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The measures indicated in the Technical Document – which are basically in line with those contained in the Guidelines published on 16 April 2020 by the European Agency for safety and health at work – are quoted in the Protocol as updated on 24 April 2020.

The European Agency for Safety and Health at Work (Eu-Osha) intervened last 16 April concerning the “Health & Safety” management in workplaces to handle the emergency caused by the Covid-19 pandemic, by publishing “Covid-19: guidance for the workplace”.

This document contains a structured series of guidelines aimed at operating in “non-healthcare” work environments that takes into account, in addition to the recommendations provided by the World Heath Organization (WHO), indications provided by another European institution that is dealing with the spread of the virus, i.e. the European Centre for Disease Prevention and Control (Ecdc).

Even if the measures suggested by these guidelines have actually already found specific and broad responses from the Italian government through the multiple decrees adopted, they have assumed particular importance due to their partial inclusion in the “Technical Document on the possible redesign of the containment measures for contagion from SARS-CoV-2 in workplaces and prevention strategies” published by INAIL which, not by chance, works precisely as the Italian focal-point of the Agency through the central Prevention Office.

The issues covered by “Covid-19: guidance for the workplace”

Various subjects are discussed in the aforesaid guidelines and they range from reconstruction of the general framework of scientific knowledge and prevention measures to implement to fight the spread of the virus, to indications on conduct to adopt if there is a suspected or confirmed Covid-19 case in the workplace. 

The innovations of primary interest contained in these guidelines are analysed below:

• Develop an “emergency and ongoing operations plan”

Employers are urged to draw up a complete document useful for preparing the organisation for the eventuality of a virus outbreak developing in the workplace.

The European agency limits itself to stating that this plan must practically establish “how” a business can continue even if a significant number of workers, contractors and suppliers are unable to reach the company due to local travel restrictions or because they are ill.

The adoption of a partially similar measure is already required by our laws by the “Joint Protocol on regulation of measures for contrasting and containing the spread of the Covid-19 virus in workplaces” of last 14 March (including in its update version of 24 April, the “Protocol”). However, in this case, the employer is asked to do more, i.e. perform a full-fledged analysis on the various situations that can have effects, serious and less so, on the company’s operations and consequently prepare this plan.

• Update the risk assessment on workplaces

The European agency believes that the adopted prevention measures “should be included in the risk assessment of the workplace that covers all risks, including those caused by biological agents as established by national and EU legislation concerning occupational health and safety”.

Therefore in contrast with what the Labour Inspector sustained with circular no. 89 of last 13 April, it is necessary to update the “Risk assessment document” (DVR) so that it includes risks connected with the spread of Covid-19 in workplaces and also identifies the prevention and protection measures adopted against this “biological risk”.

• Other measures

Moreover, in the document the European Agency mentions a series of indications on how to treat suspected or confirmed Covid-19 cases in workplaces, requiring that they be immediately isolated in separate areas and, where possible, even with closed doors, keeping the same at least two meters away from the rest of the workers present. This measure was included in the Protocol in its updated 24 April version.

Indications are also provided on the correct use of masks that, according to the European agency, should remain a complementary measure and not a replacement for prevention practices.

Lastly, protecting workers in contact with the public using screens was also suggested, in order to prevent contagion from particles suspended in the air as much as possible.

Urged by requests for protection from some bicycle couriers who proposed an emergency appeal, as per article 700 of the Code of Civil Procedures, the Court of Florence (Florence Labour Court 1 April 2020) first, and then Bologna’s (Bologna Labour Court 14 April 2020) ruled that food delivery platforms have an obligation to provide them with suitable personal protection equipment (“PPE”) against the risk of contagion.

Both of the rulings recognise the existence of fumus boni iuris (grounds for the claim), considering employment with food delivery platforms in the context of article 2 paragraph 1 of Legislative Decree no. 81/2015 with the consequent application of laws related to employment.

Then, in terms of the specific profiles regarding application of the measures and protections regarding health and safety:

• the Court of Florence refers to the provisions recently introduced by Section V-bis of Legislative Decree no. 81/15, confirming that the customer – in this case the food delivery platform – is required in relation to workers, to comply with laws and regulations concerning the protection of workplace health and safety at its own effort and expense, as per Legislative Decree no. 81/08;
• the Court of Bologna did not make any referral to this legislation and bases its ruling on the type of activity performed by the bicycle couriers and reasons for protecting both the workers and customers, as per how they result from the emergency legislation.

In addition to the fumus boni iuris requirement, the aforesaid Courts confirm the existence of periculum in mora (imminent and irreparable detriment). This is due to the fact that the performance of the work activity without the aforesaid PPE could expose bicycle couriers, pending a specific ruling, to detriment, including irreparable, of their right to health.

The holiday institute

The right to take an annual period of paid leave is a right of constitutional rank according to Article 36 paragraph 3, of the Italian Constitution, which provides that “the worker has right […] to an annual period of paid leave, and he cannot renounce it”.

On the other hand, Article 2109 Italian Civil Code is also concerned with the institution of holidays: “The employee has […] also right […] to an annual period of paid leave, if possible continuous, in the time that the employer establishes, taking into account the needs of the company and the interests of the employee. The duration of this period shall be determined by law, custom or equity.  The employer must inform in advance the employee with reference to the period of the holidays. The notice period provided with Article 2118 may not be counted in the annual paid leave”.

Source: full italian version published by Guida al lavoro – Il Sole 24 ore.