Szerző: Stefano Balzola

Employees’ personal health data collection: operational tips

Posted on by Stefano Balzola

The COVID-19 health emergency involves some issues related to the protection that the employer must offer in case of employees’ personal health data collection. The assessment and collection of information relating to the symptoms of COVID-19 (as well as that relating to recent movements of people) must be carried out by healthcare professionals and the civil defense system, which are the entities tasked with ensuring compliance with recently adopted public health rules.

For this reason, the Italian DPA clarified, on March 2end 2020, that “the employers must refrain from collecting, in advance and in a systematic and generalized manner, including through specific requests to the individual worker or unauthorized investigations, information on the presence of any signs of flu in the worker and his or her closest contacts, or anyhow regarding areas outside the work environment”.

On the other hand, the Government and the representatives of Trade Unions signed a Protocol on 14 March 2020 providing measures to contain and mitigate the COVID-19. The Protocol contains several provisions which among the other things, allows the employer to process the collection of employees’ personal data in order to protect public health.

In this sense, according to art. 2 of the aforesaid Protocol, the employer could restrict the access to personnel whose body temperature is above 37.5°C.

In order to verify this parameter, the provision allows to measure employees’ temperature at the entrance of the workplace, as long as the rules about personal data protection are complied with.

The employer should collect, in real time, the temperature and all data relating to employees’ health, according to art. 9 of the GDPR.

The GDPR  foresees derogations to the prohibition of processing of certain special categories of personal data, such as health data, where it’s necessary for reasons of substantial public interest in the area of public health (Art. 9.2.i), on the basis of Union or national law, or where there is the need to protect the vital interests of the data subject (Art.9.2.c).

For this reasons, in order to provide some operational tips, we suggest to:

  1. measure the temperature but don’t register the collected data. It’s useful to identify the person and record the temperature only when it’s necessary to document the reasons that didn’t allow the employee’s access to the workplace;
  2. provide policy on the processing of personal data. As regards the contents of the privacy policy, with reference to the purpose of the processing, the prevention of contagion from COVID-19 may be indicated and with reference to the legal basis, the implementation of the anti-infection security protocols pursuant to Art. 1, no. 7, letter d) Prime Minister’s Decree dated 11 March 2020; furthermore, with reference to the data retention period, it can be indicated until to the end of the state of emergency;
  3. define the appropriate security and organizational measures to protect the data. Controllers and processors shall give the necessary instructions to person acting under their authority who has access to personal data. Moreover, please note that the data may be processed exclusively for purposes of prevention from infection by COVID-19 and must not be disclosed or communicated to third parties, except in the cases provided for by specific  provisions (such as the request by the Health Authority aimed at the reconstruction of the chain of any „close contacts” of a worker found positive to COVID-19); we recommend, in any case, to review the company’s policy on data protection;
  4. ensure arrangements to guarantee the confidentiality and dignity of the worker. These guarantees must also be ensured in the event that the employee informs the HR manager that he or she has had, outside the company context, contact with people who have tested positive for COVID-19 and in the event of removal of the worker who develops symptoms of respiratory infection during his or her work activity.

In the event that the employer intends to request the worker to issue a self-certification attesting that, in the previous 14 days, the worker has not had any contact with people tested positive for COVID-19 or does not come from areas considered at risk, it must be considered that the acquisition of such information constitutes personal data processing, with consequent application of the protection measures indicated above. In any case, it should be considered that the employer is required to inform  their staff in advance – also by means of information signs – of the prohibition of access to those who, in the previous 14 days, have got contact with individuals who have tested positive for COVID-19 or who come from risk areas, as indicated by the WHO.

Take steps to prevent worker exposure to COVID-19

Posted on by Stefano Balzola

One of the main concern of employers is, obviously, the measures required for the protection of the health and safety at work, regulated in Italy by the Legislative Decree 81/2008.

In fact, although the risk for workers to contract the COVID-19 does not directly derive from the type of job performed and is not exclusively related to the healthiness of the workplace – as the contagion can occur in the same way both in the workplace and outside of it – it is necessary for the employer, depending on the company’s specific structure and in accordance with the company’s safety delegates, to provide precise operational indications in line with the principles of precaution and proportionality aimed at increasing the effectiveness of the containment measures adopted in order to defeat the COVID-19 in non-healthcare work environments.

In this scenario, it has intervened the Prime Minister’s Decree dated 11 March 2020 which, in addition to the suspension of the non-productive activities, provides that the operating employers shall: (i) adopt anti-infection safety procedures and, where it is not possible to respect the interpersonal distance (1 meter, at least) as the main containment measure, give to the employees individual protection instruments (e.g. masks, goggles, gloves, etc.); and (ii) promote and carry out operations of workplaces sanitization, by also using social safety nets described above.

In this respect, on Saturday 14 march 2020, the Italian Government and the representatives of Trade Unions entered into a memorandum of understanding containing the measures to which the employers shall comply with in order to continue their working production activities by ensuring the maximum safety and protection to the involved workers among which, inter alia, the workers’ access controls to the workspaces (e.g. body temperature monitoring), cleaning and sanitization of work environments, contacts’ reduction with external suppliers, hands hygiene, closure of non-necessary business units and promotion of the smart working modalities, restricted access to common areas (e.g. canteens, locker rooms, etc.), temporary stop to business trips and meetings, different scheduled entry/exit times, etc.

Furthermore, the Prime Minister Decree dated 22 March 2020 has suspended all industrial production activities and commercial activities, except essential ones (indicated in the attachment to the decree), and provides that the activities not suspended shall comply with the above mentioned memorandum of understanding dated 14 march 2020.

Given the above, it would seem to be implicit the obligation for companies to carry out a new biological risk assessment (with the technical support of the persons in charge such as e.g. Head of the Prevention and Protection Service (Responsabile del Servizio Prevenzione e Protezione – RSPP), competent doctor and workers’ safety representative (Responsabile dei lavoratori per la sicurezza – RLS), etc.), with consequent updating of the Risk Assessment Document (Documento di Valutazione dei Rischi – DVR) with the indication of all the safety measures implemented by the employer in order to prevent the risk of contagion.

In any case, it would seem necessary at least providing the workers in force with an information notice  containing the information on the biological risk and on the hygiene measures, the relevant instructions for the use of Individual Safety Devices provided (such as e.g. masks, goggles, gloves, etc.) and the methods for reporting to the competent authorities any suspicious cases of COVID-19.

In addition, we deem useful to point out that, hypothetically, if a contagion in the workplace would occur due to a violation of the employer’s obligations from which result the worker’s death or illness (lasting more than 40 days), the employer could be considered liable also from a criminal point of view.

Finally, for companies that have adopted an Organizational Model pursuant to Legislative Decree no. 231/2001, it is advisable to support an information of reporting to the Supervisory Body (Organismo di Vigilanza – OdV) in relation to: (i) the prevention and protection measures; and (ii) the adoption of specific prevention measures deemed appropriate. In such a way, the Supervisory Body could assess whether implement or modify the company’s Organizational Model.

Human resources management during the Coronavirus outbreak

Posted on by Stefano Balzola

During these days, one of the major business issues is the management of the human resources in order to balance the safeguard of the employees’ health and public health with the organizational/production needs.

Smart working

The Prime Minister’s Decree dated 9 March 2020 extend to the entire national territory the restriction of the movement of individuals “without prejudice to the work-related reasons motivated by proven needs or other situations of need or for health reasons”.

In this respect, workers seem to be free to move by completing and using a self-certification available at the following link https://www.interno.gov.it/sites/default/files/allegati/modulo-autodichiarazione-17.3.2020.pdf.

However, the Prime Minister’s Decree dated 11 March 2020 has suspend some activities (retails, restaurants, hairdressers, etc.) and provides that “with regard to the production activities and professional activities it is recommended that: 1) maximum implementation by companies of the smart working mode for activities that can be performed at home or in remote”.

Moreover, the Prime Minister Decree dated 22 March 2020 has suspended all industrial production activities and commercial activities, except essential ones (indicated in the attachment to the decree), and provides that the activities suspended „can in any case continue if organized with remote or smart working„.

Therefore, with the exception of activities not suspended that requiring the physical presence of the employees, the main instrument to be used is the so-called smart working, which – in our legal system – has been formally introduced by Articles 18-23 of Law 22 May 2017, no. 81 (Law no. 81/2017). In order to implement such a working modality, the Law no. 81/2017 provides that the employer must enter into an agreement with the worker (or with the Trade Unions) and make an arrangement on the minimum smart working requirements, such as e.g. duration, withdrawal, timing, modalities, controls, etc.).

As stated above, the Prime Minister’s Decree of 8 March 2020 – which provisions had been extended to the entire national territory by Prime Minister’s Decree dated 9 March 2020 – establishes that „the smart working mode governed by Articles 18 to 23 of Law No. 81 of 22 May 2017, may be applied, for the duration of the state of emergency […] by employers to all employment relationships, in compliance with the principles contained into the aforementioned provisions, even in lack of the individual agreements provided for therein; the [health & safety] obligations under Article 22 of Law no. 81 of 22 May 2017 are electronically fulfilled, also by using the documentation made available on the website of the National Institute for Occupational Accident Insurance [(INAIL)]”.

In few words, this provision allows the simplified smart working activation without prior agreement with the worker (or Trade Unions) and consequently without his consent, with the following obligation for the employees to comply to the employers’ directives.

Therefore, the employer who intends to implement smart working shall provide:

  1. the communication to the workers, fulfilling the health and safety information obligations by sending electronically to them (also via e-mail) the related information on health and safety during the smart working period, according to the ones published on the INAIL website (https://www.inail.it/cs/internet/comunicazione/avvisi-e-scadenze/avviso-coronavirus-informativa.html);
  2. the telematics communication according to the procedure indicated at the following link https://servizi.lavoro.gov.it/ModalitaSemplificataComunicazioneSmartWorking/, uploading – instead of the agreement with the worker – a self-certification that the smart working refers to a person belonging to a risk areas.

Despite the provisions of the Prime Ministry Decree 8 March 2020 exempt the employers from the obligation to enter into an agreement with the employees, it is still required to fulfill the other provisions contained into Articles 18-23 of Law no. 81 of 22 May 2017: therefore, the employers must provide to the employees a communication containing the indication of the working hours, the right to disconnection, the operating procedures, the IT tools to be used and the employer’s control powers.

Without prejudice to the foregoing, in order to be able to quickly implement this working modality, in our opinion it should be appropriate, in any case, for a better protection of both the employers and the employees, to proceed – as soon as possible – with the drafting of the above mentioned agreement.

Holidays and paid leave

The economic situation may, on the other hand, give rise to the need for the employer not to use all the available human resources. In this respect, the Prime Minister’s Decree dated 8 March 2020 merely states that “where possible, employers are recommended to encourage the use of periods of paid leave or holidays” and the Prime Ministerial Decree dated 11 March 2020 that „holidays and paid leave as well as other collective instruments shall be encouraged„.

In relation to the accrued holidays, the employer can freely determine the period during which they should be used by the employee, considering the interests of the latter. In any case, please note that a forced allocation of them with short notice could be challenged by the employees. On the other hand, accrued and unused paid leave cannot be allocated unilaterally (under any circumstance) to the employees, but a mutual agreement could be reached by the parties.

Income and labour market support instruments

In case of deeper crisis, income and labour market support instruments such as ordinary redundancy funds and solidarity funds can be used.

On this point, it should be highlighted that the Law Decree 17 March 2020, no. 18, introduced extraordinary “Measures to reinforce the National Health System and economic support for families, workers and business related to the epidemiological COVID-19 emergency” adopting, inter alia, some economic measures in the labour field, as by way of example:

  • extension of Cassa Integrazione Guadagni Ordinaria (Ordinary Wages Guarantee Fund) and Assegno Ordinario (ordinary allowance): the eligible employers, who suspended or reduced their business activities during the year 2020 due to the epidemiological COVID-19 emergency, can access to the Cassa Integrazione Guadagni Ordinaria (Ordinary Wages Guarantee Fund) or to the Assegno Ordinario (ordinary allowance) measures, by indicating in the request cause “COVID-19 emergency”, for a period starting from February 23, 2020 for a maximum duration of 9 (nine) weeks and, in any case, within the term of August 2020 (art. 19);
  • extension to every employer of Cassa Integrazione Guadagni in deroga (Layoff Wages Guarantee Fund): all of the employers, who do not meet the requirements for accessing to the Cassa Integrazione Guadagni Ordinaria (Ordinary Wages Guarantee Fund) or to the Assegno Ordinario (ordinary allowance) measures, can access to the Cassa Integrazione Guadagni in deroga (Layoff Wages Guarantee Fund), subject to the recognition by the Regions and Autonomous Provinces of the state of emergency and according to an agreement entered into with the most comparative Trade Unions at national level (which can also be concluded in an electronic way), for the duration of the suspension of the employment relationship and, in any case, for a maximum period not exceeding 9 (nine) weeks (art. 22).

In addition, the above mentioned Law Decree provides also for some additional benefits and allowances for the professionals, VAT holders, tourism and agricultural sectors and introduces some extraordinary measures on parental leave, babysitting, etc.

Last, it should be noted that, for a period of 60 (sixty) days, all of the collective dismissals and the ones due to objective economic reasons (Giustificato Motivo Oggettivo) are not allowed and all the pending collective proceedings started after February 23, 2020 are suspended for the same period of time (art. 46). Therefore, only disciplinary dismissals for just cause (Giusta Causa) or for justified subjective reasons (Giustificato Motivo Soggettivo) seem to be allowed.