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.
Other related insights:
The Court of Bologna, in its judgment No. 2759 of 23 April 2020, clarified the correct application and scope of Article 39 of Decree Law 17/2020 (so-called “Cura Italia Decree“), converted into Law 27/2020, stating that the disabled worker is entitled to carry out his/her job duties remotely (i.e. under the “remote working” regime).
In March last a female worker, in view of her disabled condition, asked to be placed asked to be able to work remotely for the duration of the coronavirus emergency. She attached medical documentation in support of her application, attesting to 60% disability. She also highlighted that she had a child affected by a disability within the meaning of Article 3.3 of Law 104/1992.
The employer company replied to the worker that she was currently in redundancy and that when work resumed, her application (duly received) to be placed in remote working regime would then be examined. However, when work resumed, other employees were allowed to work remotely, but not her.
This led to an emergency Labour Court application pursuant to Article 700 of the Italian Code of Civil Procedure which sought, on the one hand, to establish the illegality of the company’s decision and, on the other, to establish the right to work under the remote working regime.
A series of regulatory provisions enacted in recent months to tackle the emergency pandemic identified certain categories of workers who are entitled to work remotely or to be prioritised for remote working. More specifically, disabled workers are entitled to work remotely if they meet the conditions of Article 3.3 of Law 104/1992, or if they have a disabled person within the household who meets the conditions of Article 3.3 of Law 104/1992 and, on the other hand, private sector workers are entitled to be given priority if they are affected by serious and proven pathologies which reduce their capacity to work.
Based on these regulatory provisions, the Court of Bologna held that the applicant was entitled to work under a remote working regime in view of her “fragile” status, attributable to her own disability and also to the fact that she was caring for a daughter with a serious disability. These conditions, according to the court, are sufficient to justify the presumption of a prima facie case.
In relation, on the other hand, to the risk of imminent and irreparable detriment by reason of delay, the trial judge ruled that both the worker and her daughter are “seriously exposed to the risk of contagion, even a serious form thereof, and the health emergency is still underway. The risk is well-founded that if the applicant were to work in the normal way, leaving home to get to work, this could expose her – during the period preceding a ruling on the merits – to the risk of imminent and irreparable detriment to her health and that of her daughter living at home”.
On this basis, the Court of Bologna allowed the worker’s application and ordered the company to permit her to carry out her job duties under the remote working regime, acknowledging that remote working was compatible with the specific nature of her job duties, in view of the fact that the applicant had previously used the telephone and computer in the ordinary course of those duties.
The Court of Grosseto also ruled on the issue of remote working during COVID-19 by the order of 23 April 2020. According to the Court, the multiple emergency provisions enacted in order to prevent the pandemic’s spread considered it a priority to be able to access the remote working regime, governed in general terms by Law 81/2017.
Accordingly, if the employer is objectively able to offer a remote working regime to his employees, he is obliged not to require (disabled) employees to use their holiday leave, as occurred in this case. The requirement to use one’s holiday leave, according to the Court, “cannot be indiscriminate, unjustified or penalising, particularly where priority entitlements exist for reasons of health“.
Note, for the sake of completeness, that the increasing prominence of remote working in the context of the present pandemic was recently confirmed by the Italian “Relaunch” Decree. More specifically, this Decree entitled parents with children under 14 years of age to avail of the remote working regime provided that their job duties are compatible with such regime, until the end of the state of emergency and, in any case, no later than 31 December 2020. This is on condition that no other parent in the household is receiving income support due to suspension or termination of work, or that there is no non-working parent in the household.
Other related insights:
An amendment to the Liquidity Decree was approved in the House Committee on 21 May last, which relieves employers of any liability whatsoever in the event that employees should contract COVID-19 in the company, provided that the relevant protocols are followed. The amendment states, verbatim, that: “For the purposes of safeguarding against the risk of contagion from SARS-CoV-2, public and private employers comply with the obligation referred to in Article 2087 of the Italian Civil Code by applying the provisions contained in the joint protocol which regulates measures to combat and contain the spread of the Covid-19 virus in the workplace, signed on 24 April 2020 by the Government and social partners, as subsequently amended and supplemented, and in the other protocols and guidelines referred to in Article 1.14, of Decree-Law No. 33 of 16 May 2020, and also by adopting and maintaining in force the measures provided for therein. If the aforementioned provisions do not apply, the relevant measures will be those contained in the sector protocols or agreements entered into by the trade unions and employers’ organisations that are comparatively more representative at national level”. If the amendment under consideration is approved when the bill is passed, it would assume regulatory status as announced in the circulars of INAIL (the National Institute for Insurance against Occupational Accidents). At this point, we merely await the passing into law of the Liquidity Decree.
Other related insights:
Decree Law no. 34 of May 19, 2020 (the so-called “Recovery Decree”), entitled “Urgent measures in the field of health, support for work and the economy, as well as social policies related to the epidemiological emergency by COVID-19”, has been published.
Below is a summary of the main innovations related to the work profiles introduced by the Decree.
A. Amendments concerning (i) ordinary lay-off procedure (‘CIGO’) and ordinary allowance (‘FIS’), (ii) extraordinary lay-off procedure (‘CIGS’) and (iii) temporary lay-off procedure in derogation (‘CIGD’):
2. With regard to the ordinary lay-off procedure (“CIGO”) for companies that are already in the extraordinary lay-off procedure (“CIGS”), the following amendment is provided:
3. With reference to the “Cassa Integrazione Guadagni in deroga” (“CIGD”), the following main amendments and integrations are provided for:
B. Amendments concerning (i) specific leave and baby-sitting bonuses, (ii) paid leave ex. Art. 33, L. 104/1992 and (iii) dismissals for objective reasons.
2. Paid leave:
3. Dismissals for justified objective reasons:
C. New measures concerning (i) rescheduling of working time (ii) right to smart working (iii) extension and renewal of fixed-term contracts
2. Workers in the private sector with at least one child under the age of 14 – until the termination of the epidemiological emergency by COVID-19 have the right to perform remote work, even in the absence of individual agreements:
3. With regard to fixed-term contracts, employers have the possibility to renew or extend existing fixed-term employment contracts until August 30, 2020, even in the absence of one of the reasons provided for in the so-called Dignity Decree.
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The law firm De Luca & Partners remains available to provide any information necessary to deal with the emergency, as well as to develop the best strategies to minimize its impact on business productivity.
Vittorio De Luca and Antonella Iacobellis for Guida al Lavoro of Il Sole 24 Ore deal with some critical issues resulting from the fact that the “Cura Italia” decree states that the contagion at work from Covid-19 is equivalent to an accident at the workplace.
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