With an order dated 1 July 2020, the Court of Treviso has stressed that the setting up of the internal Committee pursuant to article 13 of the Shared Protocol dated 14 March 2020 (subsequently updated last 24 April) for the implementation and the check of the rules established therein within the workplace must take place in each single local productive unit. If the company has different seats, it is not sufficient to set up a central committee.
The case at issue derives from a procedure under article 28 of the Workers’ Statute implemented by a trade union against a cleaning and sanitisation services company rendering its services inside hospitals. In particular, the trade union complained about the company’s anti-union behaviour upon the latter’s failure to set up, within the Treviso Hospital, the Committee for the implementation and the check of the rules under the “Shared Protocol regulating the measures for the containment of the spreading of the Covid-19 virus in the workplace”.
The company had limited itself to set up a single central Committee for the North-East headquarters to which, however, the RSA (i.e. the company level unions) and the RLS (i.e. the Workers’ Representative for Safety) Cisl of the Treviso Hospital neither belonged nor had been involved at all.
Finally, the trade union complained about the poor management of the health emergency since the check-ups on the state of health of the workers engaged in the cleaning services at the hospital had never taken place, even following their return from their sick leave.
In the opinion of the Court of Treviso the rule under the Shared Protocol as to the setting up of a Committee “within the company” for the implementation and the check of the internal protocol’s rules with “the participation of the company level unions and the RLS” must be read to the extent that the committees must be implemented in the specific territorial and environmental reality in which the company’s working related activities are placed. This “since it is the place where the actual and specific needs to be monitored, watched out for and solved in a shared manner arise”.
Therefore, the company’s behaviour, which not only fails to set up the Committees at local level, but also fails to involve the RSA of the territorial company seats in the setting up of the central Committee amounts to an anti-union behaviour since it harms union privileges as specifically foreseen and shaped by the anti-Covid regulations.
The rationale underpinning any such conclusion lies in the finding that the pandemic has had an irregular spreading throughout the Italian territory, thus requiring different actions and responses based on the specific dynamics taken locally as from the spreading of the coronavirus.
Finally, the Court has taken the opportunity to specify that the binding nature of the Shared Protocol derives from the fact that the latter has taken on the rank of primary source following its implementation by Prime Ministerial Decree of 26 April 2020.
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Occupational injuries: Employer liability is not automatic
Clarifications provided by INAIL in its Circular No. 22 of 20 May 2020, on Covid19-related illnesses
The COVID-19 emergency has awakened interest in remote or agile working, with the aim of limiting the spread of the virus and ensuring business continuity,.
In the emergency phase a simplified mode of remote working has been introduced: until the end of the epidemiological state of emergency, the remote working may be activated even in the absence of individual agreements.
If, therefore, there is no extension related to the emergency situation and the connected use of the simplified mode of agile work, after 31 July, it will be necessary to switch from the emergency remote-working to the ordinary one regulated by Legislative Decree no. 81/2017.
In addition, with the overcoming of the emergency phase, it is to be hoped that remote working recover the original spirit aimed at increasing competitiveness and a greater possibility of reconciliation of life and work.
Continue here to read the full version of the article in Italian language.
Source: Agendadigitale.eu
Alberto De Luca will be the speakers at “New funding instruments in the Covid-19 emergency” Conference organised by Convenia on 7 July.
7 July 2020
Video conference event
(ore 9.30 – 13.00 / 14.00 – 16.00)
During his talk, Alberto De Luca will examine the restrictions and commitments of the companies benefiting from financing in employment relationships.
In particular, the talk will focus on the following topics:
Click here per for further information.
On 20 May 2020, the National Institute for Insurance against Occupational Accidents (INAIL) published Circular 22 which provided certain clarifications in relation to categorising the Covid-19 infection as an occupational illness.
Article 42, paragraph II of Decree-Law 18 of 17 March 2020, better known as the “Cura Italia Decree“, later converted into Law No. 27 of 24 April 2020, states that “In verified cases of coronavirus infection (SARS-CoV-2) in the workplace, the certifying doctor draws up the normal accident certificate and sends it electronically to INAIL which ensures that the ill person will receive social security protection in accordance with applicable provisions“.
The insurance institute dealt with this issue in its Circular No. 13 of 3 April 2020, which provided operating information for the protection of workers who have contracted the coronavirus while at work, following the entry into force of the above provision. INAIL stated, more specifically, that for health care workers exposed to a high risk of infection and also for those whose work brings them into continuous contact with the public and/or with consumers/users, there is a simple presumption that the Covid-19 infection has an occupational origin which, it notes, is always rebuttable“.
In its Circular 22 of 20 May, INAIL firstly reiterated that Article 42, paragraph II of the Cura Italia Decree merely reaffirmed a principle of case law going back for many decades, by which if infectious diseases (e.g. hepatitis or AIDS), are contracted at work, they should be always be categorised and treated as occupational illnesses. This is because a virulent cause is equated to an injury at work caused by trauma, even if the effects take time to manifest themselves.
In relation to verifying the contagion, INAIL has stated that despite the aforementioned simple presumption, social security protection is not automatic. The existence of known facts must always be verified: in other words, this simple presumption of occupational origin should be founded on the existence of serious, specific and consistent items of evidence.
Therefore, this simple presumption presupposes a rigorous assessment of the facts and circumstances underpinning the conclusion that the infection occurred while at work (such as work procedures, analysis of the time the infection appeared etc.), however the Institute is entitled to present evidence rebutting this presumption.
In conclusion, the recognition of the professional origin of the contagion is based on a judgment of reasonable probability and is completely separate from any assessment of the employer’s responsibility for any omissions that could have caused the contagion.
In this context, the insurance institute lays to rest a recent debate that has arisen in this area, by clarifying that recognising the occupational origin of the infection is very different from attributing criminal and civil liability to the employer for a Covid-19 infection contracted by his employees. In order for this liability to exist, there must be strong evidence of a causal nexus and also that the employer’s conduct was, at the very least, negligent.
Therefore, the preconditions for paying out INAIL social security benefits should not be confused or conflated with the preconditions for the employer’s criminal and civil liability, which should be strictly ascertained by means of criteria which are different from those used to decide whether a person holds particular social security entitlements.
INAIL’s clarification is, moreover, in line with the recent case law on the matter, according to which “[…] one cannot automatically assume from the simple occurrence of harm that inadequate protective measures were adopted; rather, the harm in question must derive causally from the infringement of specific obligations of conduct imposed by law or suggested by technical or experimental knowledge in relation to the work carried out” (Supreme Court of Cassation No.3282/2020).
In view of these arguments, INAIL concludes with the statement that the employer will be liable only for violation of the law or of obligations arising from experimental or technical knowledge, which in the case of the COVID-19 epidemiological emergency may be found in governmental and regional protocols and guidelines.
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The memorandum issued by the Public Prosecutor’s Office at Bergamo Court on 12 May 2020 will be examined here, as will the provision contained in Article 1.3 of the Lombardy Region Ordinance 547 of the following 17 May pertaining to body temperature measurement.
Both instruments are concerned to provide clarifications and operational information in order to ensure business continuity or a safe resumption of business activities.
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The Public Prosecutor’s Office at Bergamo Court, by memorandum of 12 May 2020, having first acknowledged the reopening of numerous production activities, offered operating guidelines to the Supervisory Bodies responsible for ascertaining the application of the shared regulatory Protocol for combating and containing the spread of the COVID19 virus in the workplace, of 24 April 2020 (the “Protocol“).
As well as referencing multiple emergency measures to contain the emergency resulting from the spread of COVID19, the memorandum highlights that – pursuant to Article 2.6 of Prime Ministerial Decree of 26 April 2020 – companies whose activities are not suspended, must comply with the provisions of the Protocol (and also of other instruments).
Having said that, the memorandum goes on to address the nature of the Protocol’s provisions and of the penalties provided for in the event of non-compliance.
The memorandum emphasises, here, that:
The Public Prosecutor’s Office, however, highlights that the end of the sanctions regime referred to in Law 689/1981 does not provide for the power to require organisational and management measures to be adopted “which would produce the beneficial effect of adapting workplaces to the anti-contagion precautions indicated in the protocols and, consequently, of improving health and safety conditions in order to reduce the Covid-19 risk factor”.
In order to fill this gap, the memorandum notes that the containment measures indicated in the Protocol correspond to the provisions contained in the rules of Legislative Decree 81/2008 and, referencing the Protocol, details the following points in common:
Ordinance 547, issued on 17 May 2020 and valid until the following 31st of May, is crucially important in order to ensure safety business continuity or a safe return to work, and it applies exclusively to companies based in Lombardy Region. The infringement of its provisions will trigger the application of the penalties provided for by Article 2 of Decree-Law 33/2020.
Here, we will focus on the provision contained in Article 1.3 relating to the recording of body temperature, carried out by the employer or his delegated official.
The aforementioned article provides, more specifically, that the employer or delegated official must record the body temperature of employees before entering the workplace or even while at work if a worker shows symptoms of infection from COVID19.
If his/her temperature exceeds 37.5 °, the worker will not be permitted to access or remain in the workplace. Those in this condition will be temporarily isolated and should not go to hospital emergency or to company infirmaries.
The employer will be required to promptly notify this circumstance – through the company doctor referred to in Decree-Law 81/2008 and/or the personnel office – to the Health Protection Agency (ATS) with competence for the territory, which will provide suitable information that should be followed by the affectedperson.
If the worker takes up service in a workplace or performs his/her job duties in circumstances that do not envisage the direct presence of the employer or a delegated official of the latter:
Finally, the Ordinance “strongly recommends” that the body temperature of customers/users should be recorded before they are permitted access. This is obligatory in case of access to restaurants/catering facilities where food/drink is consumed on the premises.
If the body temperature goes higher than 37.5 °, access to the premises will not be allowed and the party affected will be told to contact his/her family doctor.
The Ordinance notes cases where the employer does not have a special measuring device for body temperature due to difficulties of supply, and in this case the employer or delegated official can, for a temporary period only, take the employee’s or customer’s temperature on his/her arrival at the workplace, using suitable personal instrumentation.
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