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:
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.
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”.
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:
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 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.
