Art. 2087 requires employers to take measures to prevent situations harmful to the worker’s physical health and personality based on experience, technology, and type of work.
This “open” rule obliges the entrepreneur to adopt legal measures for specific and generic work risks based on common experience or necessary to ensure work safety considering the type of work, background and technology.
The legislator provided for safety obligations in cases where contract work is performed within the principal’s company (or production unit). The principal must verify the technical and professional suitability of the contractors and provide them with detailed information on working environment risks and the associated work-related prevention and emergency measures. These obligations arise when the principal is legally in charge of the places where the contract is performed.
The principal and contractor (and any subcontractors) must cooperate in applying occupational risk prevention and protection measures when implementing the contract and coordinate these measures for workers exposed to risk. They shall inform each other to eliminate the risks due to interference between the works of the different companies involved.
The Court of Cassation stated that the principal’s work accident prevention obligations do not end with the contractual agreements stipulated with the contractor, given that regulations require employers to cooperate in applying the measures of prevention and protection from the risks impacting work under the contract.
The full version of the in-depth study was published in issue 29 of Guida al Lavoro of Il Sole 24 Ore.
On 5 January 2022, the Council of Ministers, based on a proposal from the Prime Minister and Minister of Health, approved a law-decree that introduces “urgent measures for dealing with the COVID-19 emergency, in particular in workplaces, schools and institutes of higher learning”. The decree-law was published in the Official Gazette last 7 January and became effective 8 January.
According to what the Council of Ministers declared through its own press release, the new measures were aimed at “slowing the growth curve of cases related to the pandemic and provide greater protection to those categories which have greater exposure and greater risk of hospitalisation”.
The introduced measures include the extension from 8 January 2022 to next 15 June, of the vaccine obligation for Italian citizens and other Member State citizens resident in Italy as well as other non-EU citizens or persons in violation of the laws regarding entry into and residency in Italy who are fifty years old. The obligation in question “does not apply in cases of a verified health risk in relation to specific documented clinical conditions, attested by the patient’s primary care physician or vaccinating physician, in relation to the Ministry of Health’s circular letters concerning exemption to the anti SARS-Cov-2 vaccination; in such cases the vaccine can be omitted or deferred”.
Furthermore, according to the Decree, as of next 15 February and until next 15 June, all workers with an age equal to or greater than 50, must possess and show a Covid-19 green pass certification of vaccination or recovery (so-called “reinforced Green Pass”) to access job sites.
For the periods in which the vaccination is omitted or deferred, the employer will assign the worker in question to duties, even different, with no decrease in remuneration, in order to prevent spread of cases.
Moreover, the Decree in question states, in art. 3, that “the employer (editor’s note regardless of the size requirement) can suspend the worker for the duration corresponding to that of the employment contract stipulated for the substitution, but for a period not greater than ten work days, renewable until the aforesaid tern of 31 March 2022, without any disciplinary consequences and with the right of the suspended worker to keep his/her job”.
The control procedures will remain those currently in use, the workers who communicate that they are not in possession of a reinforced Green Pass or do not possess one at the time of access, shall be considered unjustified absences. They shall have the right to keep their job without any disciplinary consequence until presentation of the same, and by 15 June 2022.
Workers without a reinforced Green Pass shall be denied access to the workplace. Violation of this ban exposes the worker to a fine from 600 euro to 1500 euro, without prejudice to the disciplinary consequences according to the respective sector rules. The fine from 400 euro to 1,000 euro for employers for failure to comply with the control measures remains unchanged.
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The new FAQ of the Italian Data Protection Authority (hereinafter, the “Authority”) were published on 6 May 2020 on its website, containing information on the correct processing of personal data strictly related to the spread of the new Covid-19 virus (“Coronavirus “), supplemented on the following 14 May.
With specific reference to the occupational context, the Authority provides important clarifications on the employer’s ability to record the body temperature of employees, customers, suppliers or occasional visitors at the entrance of company premises or offices, preventing persons from access who have a temperature exceeding 37.5 °, as provided for by applicable law.
According to the Authority, the possibility of recording body temperature is provided for by the joint “Safety Protocol” (hereinafter, the “Protocol “) of the Social Partners and the Government, signed on 14 March 2020 and updated on the following 24 April.
Given that the recording of an identified person’s body temperature constitutes the processing of personal data, the Authority clarifies how the employer can record and register an excessive body temperature only where it proves necessary to document the reasons why an employee has been prevented from accessing the workplace.
It is not necessary to record the body temperature data of customers, suppliers or occasional visitors as it is not necessary, in relation to these persons, to document the reasons for any refusal of access. This clarification is provided in view of the “data minimisation principle” envisaged by Article 5.1 c) of Regulation (EU) 2016/679 (the “GDPR “) according to which “personal data must be adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed“.
On 14 May 2020 the Authority supplemented the previously communicated FAQs in order to clarify whether an employer can carry out serological tests on its employees directly.
More specifically, it clarifies that only the company doctor or other health professional (i) can provide for serological tests to be carried out on employees, or (ii) can provide for the adoption of diagnostic tools if considered useful in order to limit the spread of the virus, while following instructions and guidelines issued from time to time by the competent health authorities, also in relation to the appropriateness and reliability of the instruments indicated. These provisions also apply to medical checks carried out in order to assess whether a worker should be allowed to return to his/her job duties after e.g. a prolonged absence due to illness.
According to the Authority, this follows from the specific wording of paragraph 12 of the Protocol (“12-Health surveillance/Company Doctor/Workers’ Safety Representative (RLS)“), emphasising the importance of health surveillance, which must be arranged not only in strict observance of the health and hygiene measures contained in directions handed down by the Minister of Health and by the competent authorities, but also by ensuring that information and training are provided to workers by the company doctor, in order to prevent the spread of infection.
If the company doctor is in a position to carry out those tests, he may communicate to the employer no more than his opinion as to whether or not the worker concerned is fit for work or otherwise.
The Authority emphasises that the employer
Subject to the foregoing, the FAQs in question clarify that workers can sign up to special screening campaigns initiated and promoted by the competent health authorities, also through the employer where the latter has been directly involved by the local prevention department in promoting those campaigns, also by agreeing to cover the associated economic costs incurred by its own employees.
The Authority considers, in any case, that the company doctor, the employer and the Workers’ Safety Representative (RLS) or Territorial Workers’ Safety Representative (RLST) should – in the collaborative effort to adopt all regulatory measures required in order to contain the spread of Covid 19 – pay particular attention to applicable rules, to the guidelines and directions of the competent Authorities, and also to ensuring full compliance with personal data protection rules, guaranteeing the adoption of methods and instruments that can safeguard the confidentiality and dignity of data subjects concerned.
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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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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.
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