The Court of Justice of the European Union (hereafter: “Court of Justice”), in its 19 May 2022 ruling Case C-33/21, stated that personnel of an airline company established in a Member State, who works for at least 45 minutes per day in an establishment located in another Member State, which coincides with the country of residence, is subject to the social security legislation of the latter country.
Following an inspection, INPS stated that the employees of an airline (hereafter: “airline”), based in a Member State and assigned to an Italian airport, were employed in Italy under Italian law and Art. 13 of Regulation no. 1408/71, and must be insured with INPS for the period between June 2006 and February 2010.
Under Italian law, INAIL stated that these employees had to be insured with INAIL, for the period from 25 January 2008 to 25 January 2013, for the risks connected with non-aviation work since they were employed at the company’s service base located at the Italian airport.
INPS and INAIL required the airline to pay social security contributions and insurance premiums for those periods (hereafter: “the periods”). This demand was challenged by the airline before the national courts.
The Court of First Instance and the Court of Appeal rejected the INPS and INAIL claims as unfounded, stating that the airline’s employees were subject, for these periods, to the legislation of the Member State where it was established.
The local Court mentioned the settled case-law of the Court of Justice, which stated that the E101 certificates are binding on national courts. When examining the E101 certificates produced by the airline, the Court concluded that there was no proof that these certificates covered all employees assigned to the Italian airport during those periods. The Court of Appeal deemed it necessary to define the social security legislation applicable, under Regulation no. 1408/71, involving employees, for whom the existence of an E101 certificate was not established.
The Court of Cassation, hearing the case, following an appeal brought by INPS and INAIL, recognised the binding nature of the E101 certificates produced by the airline company, and decided to suspend the proceedings and ask the Court of Justice, by reference for a preliminary ruling, which criteria must be used to define the social security legislation applicable to these employees, in relation to Regulations no. 1408/71 and no. 883/2004.
Continue reading the full version published in Norme & Tributi Plus Diritto of Il Sole 24 Ore.
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.
Other related insights:
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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Quotidiano del Lavoro published an article signed by Vittorio De Luca and Debhora Scarano regarding the INAIL Technical Document about the possible remodulation of measures to contain SARS-CoV-2 infection in the workplace and to prevent strategies.
This Technical Document further confirms the importance for the employer to implement a safety and prevention system in order to protect the worker but also himself from possible liability or claim for compensation actions, at this point also consequent to possible accidents.
Click here to read the DLP insights related to the matter and the considerations of the Firm.
