The Protocol between the Government and Social Partners of March 14, 2020

Protecting workers' health is a genuine obligation for employers. This principle, which has constitutional status (Article 32 of the Constitution), is set out in Article 2087 of the Civil Code:  the employer is required to refrain from conduct that is harmful to the worker and to adopt all technologically possible measures in the field of safety and hygiene in the workplace, updating them in line with scientific developments, in order to preserve the physical and mental integrity and moral dignity of workers in the workplace. The system is then completed by Legislative Decree 81/2008, which establishes a series of specific obligations and procedures for the protection of health and the prevention of diseases and accidents at work.

Based on this regulatory framework, the health emergency that the country is experiencing due to COVID-19 certainly requires companies (or rather, any employer) to implement a series of measures specifically aimed at protecting the health of their employees from the effects of the virus.

It is important to remember that failure to adopt adequate measures to protect workers' health can have two main effects:

  1. The legitimate refusal of an employee to comply with company directives (going to work, traveling on business, visiting a certain customer or supplier): this is the so-called "exception of non-performance" (Article 1460 of the Italian Civil Code), according to which in contracts for reciprocal services, such as employment contracts, "each of the contracting parties may refuse to perform its obligation if the other party does not perform or does not offer to perform its obligation at the same time...";
  2. The right to compensation for damage to health, possibly caused by the employer's conduct (including mere omissions), where there is a causal link between the damage and the conduct. It is the employer's responsibility to prove that they took all necessary precautions to prevent the damage from occurring.

To avoid the consequences described above, it is therefore advisable for employers to take specific active measures in dealing with this particular health emergency.

The shared protocol regulating measures to combat and contain the spread of COVID-19 in the workplace, signed on the morning of March 14, 2020, by the government, trade unions, and businesses, fits perfectly into this framework. The Protocol contains guidelines agreed upon by the signatory parties to help companies adopt anti-contagion protocols and make workplaces safe.

These, in summary, are some suggestions and operational guidelines that emerge from the Protocol.

Update of Documentation Legislative Decree 81/2008

The current emergency certainly poses a risk that must be taken into account for the purposes of the risk assessment document (DVR) that must be prepared and updated by the employer in accordance with Legislative Decree 81/2008. It is therefore advisable that company managers, and in particular the prevention and protection service manager (RSPP), consult with the competent doctor and, if necessary, with the company's worker safety representative, in order to update the DVR to adapt it to the specific risks associated with the current epidemiological emergency. The Protocol does not expressly refer to the updating of the DVR, although it calls for collaboration between the company, the competent doctor, and workers' safety representatives in order to integrate specific regulatory measures.

Adoption of measures to prevent and combat the spread of the so-called "biological risk"

Updating the DVR helps, among other things, to streamline the preventive measures that employers must implement. Obviously, these measures must be identified on a case-by-case basis in relation to the organization of work within the company. The Protocol, however, indicates numerous measures:

  1. Health prevention.
  • Proceed with sanitizing the premises; obviously, the frequency should also be considered based on the actual presence of people (employees, customers, suppliers, etc.) on the company premises. The Protocol indicates that this should be done "periodically" in rooms, offices, and departments, on keyboards, mice, and touch screens.
  • Provide personal protective equipment (PPE): this includes masks, disposable gloves, and hand sanitizers. The obligation to provide PPE is set out in Legislative Decree 81/2008 but must be appropriate to the actual risk. It should be noted that the health and hygiene measures provided for by the Prime Ministerial Decree of March 8, 2020, recommend the use of masks only "if you suspect you are ill or if you are caring for sick people." There is therefore no absolute obligation to provide masks, but their use must be assessed on the basis of the specific situation and the actual risk. The Protocol provides that "if the work requires working at a distance of one meter from other people and no other organizational solutions are possible, it is still necessary to use masks and other protective equipment (gloves, goggles, coveralls, caps, gowns, etc.) in accordance with the provisions of the scientific and health authorities."
  1. Work organization. Just as every citizen must rethink their personal life these days, companies must rethink their organizational model. The Protocol provides a framework of possible actions, which have already been suggested in a non-organic manner during these hectic days:
  • Encouraging remote working: as is well known, the various decrees approved in the last week to prevent the spread of the virus strongly recommend the use of working solutions that avoid the presence of people in the workplace (smart working, teleworking); also in light of regulatory liberalization (no prior agreement with the employee is necessary), the organization of remote activities, insofar as they are compatible with the specific work performance, is a real obligation for the employer;
  • Limit attendance at the company with new shift schedules and restructuring of production levels;
  • With the same aim in mind, lay off workers who are not strictly necessary for production activities: in this regard, beyond access to the social safety nets already in place and those that the government will hopefully implement (exceptional redundancy fund), it should be noted that employers have the right to require workers to use their accrued vacation and leave days.
  • Limit travel that is not strictly necessary; in fact, the Protocol stipulates that "all domestic and international business travelis suspended and canceled,"but it seems unlikely that an absolute ban unrelated to actual needs will be imposed;
  • Avoid face-to-face meetings (in urgent cases where remote connections cannot be arranged, social distancing must be ensured);
  • Suspend or cancel internal events, including training events, unless they can be held remotely.
  1. Organization within company premises. It isnecessary to rethink the movement of people within company premises with the usual aim of avoiding personal contact. The Protocol provides for:
  • Encourage staggered entry and exit times for employees on company premises; note that the Protocol provides for the possibility of taking the temperature of employees upon entry; if it is above 37.5°C, they must be denied entry to the company, placed in isolation, and provided with a mask, without prejudice to the obligations to notify the health authorities;
  • Organization of common areas (canteen, changing rooms, beverage dispensers, smoking areas) in order to ensure limited access, ventilation, and periodic sanitization of the premises, maintaining safe distances;
  • Limit access to the company by persons other than workers who are not necessary for the production or organizational process (suppliers, customers, representatives, etc.); in case of necessity (suppliers), the Protocol indicates the need to "identify entry, transit, and exit procedures using predefined methods, routes, and timings in order to reduce opportunities for contact with staff (e.g., dedicated restrooms).
  1. Preparation of protocols and procedures in the event of confirmed infections within the company. It is advisable to consult with the company doctor to assess the most appropriate measures to be defined in line with the directives of the institutional health authorities. The Protocol identifies a number of operational guidelines:
  • If a person present in the company shows symptoms (fever above 37.5°C, cough, breathing difficulties), they must report this to the personnel office (or other competent office), they must be isolated, and the competent authorities and COVID-19 emergency numbers of the Region or Ministry of Health must be notified.
  • If the virus is detected, the company will be required to cooperate with the Health Authorities to identify any "chain of infection."

Disclosure requirements

It is worth remembering that providing accurate information is also a useful measure for reducing risks and is therefore a duty of the employer under the general health protection obligations set out in Article 2087 of the Italian Civil Code and Legislative Decree 81/2008. It is therefore advisable to prepare a general communication plan for employees that includes:

  • The invitation to apply the preventive measures suggested by the competent bodies (ISS, Ministry of Health) and also contained in the Prime Ministerial Decree of March 8, 2020 (the now well-known ten commandments of Annex 1: wash your hands, keep a distance of one meter, do not touch your eyes, nose, and mouth, avoid the promiscuous use of glasses and bottles, etc.);
  • Information on the specific prevention and safety systems adopted by the company;
  • Information on the protocols established within the company in the event of confirmed infections.

The Protocol stipulates, in particular, that the company is obliged to inform (in an appropriate and effective manner) workers and anyone entering the company premises of the health provisions in force. In particular, the company must communicate the following to everyone:

  • The obligation to remain at home in the event of symptoms (fever, cough, breathing difficulties);
  • The inability to enter the company in the event of flu symptoms, coming from high-risk areas, or contact with people who have tested positive for the virus in the previous 14 days;
  • The obligation to inform company managers in the event of flu symptoms appearing during the course of work.

Conclusions

In general, it is clear that the necessary measures depend on specific situations, to be assessed on a case-by-case basis, which must always be guided by the general principles outlined above. Without prejudice to compliance with the model proposed by the Protocol, the employer, as the guarantor of safety at work, must, in any case, comply not only with the regulations and measures imposed by law, but also with the common rules of prudence, diligence, and expertise; it is therefore always advisable to be guided by intelligence and common sense when identifying the appropriate actions. As the Protocol suggests, "The primary objective is to combine the continuation of production activities with the guarantee of healthy and safe working conditions." Because, ultimately, limiting the spread of the virus is now in the interest of the community as a whole and the stability of the entire production system.

Attorney Piercarlo Antonelli

AMTF Lawyers – Head of Labor Law Department