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.