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Ready to go again but with what rules?

The National Labour Inspectorate provides detailed instructions to the territorial inspectorates to undertake checks on compliance with the contents of the protocol shared between the Government and the social partners on 14 March 2020 and on compliance with the precautionary measures to be taken for the safety of workplaces and workers. Vittorio De Luca, Antonella Iacobellis and Martina De Angeli analyse for Guida al Lavoro of Il Sole 24 Ore the operational guidelines to manage Phase 2.

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In order to facilitate the activity of the Prefects at a decisive moment such as that of the so-called Phase 2, the National Labour Inspectorate (“INL”), on 20 April 2020, published note no. 149 (“Note INL no. 149”), with which it provides a real operating guide for its territorial offices, to contribute, at the request of the Prefectures, to the necessary checks on the occurrence of the conditions provided for the prosecution – in case where it is permitted – of production, industrial and commercial activities, with a view to indispensable synergy in the management of the current pandemic emergency.

These requests are in response to the circular of the Ministry of the Interior dated 14 April 2020, prot. no. 15350/117 (Annex A to the INL Note no. 149) which provides clarifications regarding the D.P.C.M. 10 April 2020 and which, among other things, highlights the need for the Prefectures to request the collaboration of the competent services of the Local Health Authorities (“ASL”) and the support of the INL’s territorial articulation, for the purposes of control:

• on the methods of implementation, by employers, of the organizational and management procedures that are the subject of the shared Protocol for the regulation of measures to combat and contain the spread of the Covid-19 virus in social work environments (“Anti-accounting Protocol”) of 14 March 2020 (Annex B to INL Note no. 149), and, more generally;

• on compliance with the precautionary measures to be taken to make workplaces and workers safe.

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

The National Labour Inspectorate (“INL”) issued two notes, one shortly after the other, used to provide the first clarifications concerning the inspection procedures for worksites in light of the pertinent guidelines, shared in the “Joint Protocol on regulation of measures for contrasting and containing the spread of the Covid-19 virus” (the “Protocol”) signed by the stakeholders on 14 March 2020 (recently updated last 24 April).

Note 131 of 10 April 2020

Note no. 131 of 10 April 2020 has the objective of making workplace conduct uniform and consistent including due to the evolution of the pertinent emergency regulatory framework. A regulatory framework which, as should be recalled, has:

• first of all decriminalised violations of the containment rules – restoring them at most to sanctions of an administrative nature – and
• reinforced the central nature of the institutional figure of Prefect as being responsible for exercising the control action necessary for ensuring compliance with the adopted measures.

According to the INL inspection activity will be primarily focussed on  implementation procedures, by the employers, of organisational and management procedures set up by the authorities and subject matter of the aforesaid Protocol.

It was further explained that the professionalism of the inspectors may be useful also in terms facilitation, mediation, deflation and verification of the processes for using public resources dedicated to support for families, workers, companies and credit, such as those to access social safety nets.

Note 149 of 20 April 2020

With the subsequent note no. 149 of 20 April 2020, INL provided further explanations concerning its inspectors’ control procedures on observance of the conditions required to continue production, industrial and commercial activities.

The note states that the Inspectors must perform inspection activities in close collaboration with the competent offices of the Local Healthcare Agencies, and with which they must previously establish a plan containing lists of companies to focus controls on. This is also envisaged to make it easier to correctly identify the objectives to pursue. However, should the inspectors find themselves faced with clear violations of a certain seriousness and urgency, requiring immediate on-site inspections, they may still perform them even without compliance with the aforesaid procedure.

In addition, the note specifies that for these types of inspections, the selection of inspectors to use must primarily be done on a voluntary basis and, above all, they must be provided with personal protection equipment suitable for the purpose.

Lastly, the note contains annexes such as (i) “guidelines for inspections on the anti-contagion protocol”, (ii) a report form for access and inspection entitled “Covid-19”, (iii) a list of personal protection equipment (PPE), with relative instructions for use for inspection personnel and, lastly, (iv) a check list with the inspections to perform; this is a type of questionnaire with yes/no answers to be filled out by the inspector.

In terms of punishment, if the inspectors find failure to comply with one or more of the prevention measures in the “Protocol”, they will not proceed by imposing a sanction on the employer. They must transmit the results of the inspection to the competent Prefecture, i.e. the access report and filled in check list, summarising the omissions and/or failures they found for adoption of any pertinent measures. It is then up to the Prefecture, based on this report, to adopt any measures, including of an interdictory nature, applied to the company.

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.