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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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1.  Guidelines provided by the Public Prosecutor’s Office at the Court of Bergamo

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 Government, by means of Decree-Law 19/2020, authorised the President of the Council of Ministers to identify containment measures, and he duly exercised that power by issuing the Decrees of 10 April and 26 April 2020, which specifically identified “these measures: they are of a regulatory nature because they are provided for by Decree-Law 19/2020 and were issued in implementation of said Decree-Law”;
  • as the Protocol’s contents are “containment measures, their infringement, as with the infringement of any other containment measure, triggers the application of sanctions identified by Legislative Decree 19/2020, more specifically by Article 4 entitled ‘Sanctions and controls’ ” and, accordingly, the application of the sanctions regime referred to in Law 689/1981 (these are immediately applicable administrative sanctions). 

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:

  •   “point 1 “INFORMATION “-“ it is proposed to sue the employer/manager for infringing Article 36.2 a), namely for failing to ensure that each worker is properly informed about the specific risks to which he/she exposed in relation to the job duties carried out, and about the safety rules and relevant company provisions enacted”;
  •     point 4 “CLEANING AND SANITATION IN THE COMPANY”- “It is proposed to sue the employer/manager for infringing Article 63.1, in conjunction with Article 64.1 d) and Annex IV point 1.1.6., for failing to keep work areas clean by having special cleaning carried out”;
  • point 5 “PERSONAL HYGIENE PRECAUTIONS”- “it is proposed to sue the employer/manager for infringing Article 18.1 f) for failing to request individual workers to comply with applicable rules and also with company workplace health and safety provisions”; 
  • point 6 “PERSONAL PROTECTIVE EQUIPMENT”- “it is proposed to sue the employer/manager in the event of failure to supply PPE provided for by the joint Protocol, for infringing Article 18 I d): for failing to provide workers with the necessary and appropriate personal protective equipment, after consulting with the Risk Prevention and Protection Service Manager and the company doctor, if present”.   I d): for failing to provide workers with the necessary and appropriate personal protective equipment, after consulting with the Risk Prevention and Protection Service Manager and the company doctor, if present”.

1.2 Ordinance 547 of the Lombardy Region

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:

  • he/she should promptly report any symptoms of COVID-19 infection to his/her employer or delegated official and abstain from going to work, and the same report should be made if the symptoms first make their appearance at work;
  • accordingly, the employee should not go to or stay at work, and should temporarily isolate, and refrain from going to the hospital emergency and/or to the company infirmary;
  •  the employer or appointed delegate will, in turn, promptly notify this circumstance – through the company doctor referred to in Decree-Law 81/2000 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 affected person;
  • in any case, the employer or delegated official shall remind employees of their obligation to measure their body temperature – e.g. by email or SMS.
  • moreover, the employer or delegated official will be able to check – at any time, also using sample checks – for symptoms of infection that might require the employee to abstain from starting or continuing work.

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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