CORPORATE & COMMERCIAL | Coronavirus and health and safety requirements

1. Foreword

Given the extraordinary situation related to the spread of the COVID-19 virus (for the sake of simplicity, hereinafter also referred to as “Coronavirus”), in compliance with the provisions adopted at national, regional and local level (as applicable from time to time and to which reference should be made for further details), employers are required to adopt measures to ensure full protection of the health and safety of workers, in accordance with both Article 2087 of the Italian Civil Code and the consolidated Act on Safety (Legislative Decree No. 81 of 9 April 2008 hereinafter, “Legislative Decree 81/08” or “Consolidated Act on Safety") - on this topic, please refer to Paragraph 2 below.

This in consideration of the fact that many needs for protection coexist in working environments: protection of the health of the general population, protection of the health of workers, protection of the health of healthcare workers (both those responsible for ensuring health surveillance in accordance with the Consolidated Act on Safety and those responsible for ensuring supervisory and control functions).

Moreover, it should be noted that the Government has already adopted a series of provisions aimed at managing the emergency related to the spread of Coronavirus in Italy, which have a more or less direct impact on the organization of work by the employer (please refer to Paragraph 3).

Finally, the Decree of the President of the Council of Ministers of 22 March 2020 (“DPCM of 22 March 2020”), published in the Official Gazette General Series No. 76 of 22 March 2020), has suspended industrial production and commercial activities in the Country, with a number of exceptions, which will be outlined in Paragraph 4.

Below is a brief, non-exhaustive, overview of the regulatory framework and of the measures that employers must and/or may adopt (Paragraphs 5 and 6) to manage the above situation (and which may be replaced by more restrictive measures depending on the area where the relevant task is to be performed), also in accordance with the instructions provided by the World Health Organization[1].

Please note that the competent authorities may supplement, amend or replace said measures at any time. Therefore, in order to be constantly updated, please refer to the website of the Ministry of Health.

Finally, the present document also provides a brief, non-exhaustive, notes on the risks that companies may incur in relation to the non- or insufficient - implementation of safety measures to prevent Coronavirus infection (Paragraph 7).

2. Brief general overview: employer’s obligations with regard to safety at work

The employer is the main responsible for the implementation of safety requirements, as he is the corporate institution in charge for the organisation itself or the production unit. The employer is required to take the necessary measures to protect the physical integrity, personality and psychological well-being of workers.

According to the Legislative Decree 81/08, the employer must, inter alia:

• carry out the assessment of the risks to which workers are exposed by drawing up the Risk Assessment Document (“DVR” - Documento di Valutazione dei Rischi). Indeed, pursuant to Article 29, paragraph 3 of Legislative Decree 81/08, the risk assessment must be “immediately revised when there are changes in the production process or work organisation that are significant for the health and safety of workers, or in relation to the degree of technical development, prevention or protection or as a result of significant accidents or when the results of health surveillance show the need to do so”[2];
• proceed with the planning and implementation of prevention and protection measures, for the implementation of which he can (or, in some cases, must) establish a specific prevention and protection service, with the appointment of a Prevention and Protection Service Manager, the so-called “RSPP”;
• provide the health surveillance by appointing a competent occupational doctor in companies where workers carry out activities exposing them to particular health risks;
• regular clean workplaces, installations and equipment so as to ensure adequate hygienic conditions;
• where risks cannot be avoided through collective protective measures, the employer must provide workers with Personal Protective Equipment (“PPE”)[3]. Pursuant to Article 77 of Legislative Decree 81/08, “in choosing the PPE, the employer shall: a) carry out the analysis and assessment of the risks that cannot be avoided by other means; b) identify the characteristics of the PPE needed so that they are suitable for the risks referred to in letter a), taking into account any additional sources of risk represented by the same PPE; c) assess, on the basis of the information and rules of use provided by the manufacturer accompanying the PPE, the characteristics of the PEE available on the market and compare them with those identified in letter b); d) update the choice whenever there is a significant change in the assessment factors”[4] ;
• provide workers with adequate information and training (including in relation to the use of DPIs);
• take all the necessary measures for handling emergencies, with particular regard to first aid and fire prevention.

The employer may, for organisational reasons, delegate its functions (except for his duties to carry out the risk assessment and to appoint the RSPP) to another person, while maintaining the obligation of supervision and control. Specific obligations concerning the management and control of aspects related to the health and safety of workers are also assigned by law (and therefore cannot be derogated from or waived) to “managers” and “supervisors”.

3. Relevant regulatory interventions to manage the Coronavirus emergency

For the purposes hereof, it is first of all to make reference to Decree Law No. 6 of 23 February 2020, converted into Law No. 13 of 5 March 2020 (“D.L. 6/20”), which provides that the competent authorities may (and in some cases must) adopt “any appropriate and proportionate measures to contain and manage the evolution of the epidemiological situation”[5] .

Pursuant to Article 3, paragraph 1 of D. L. 6/20, the aforesaid measures shall be adopted by one or more decrees of the President of the Council of Ministers (“DPCM”) and without prejudice to the possibility of enacting extraordinary and urgent ordinances by the Minister of Health, as well as emergency measures by mayors and regions.

For the purposes of implementing D.L. 6/20, the following decrees have been issued: DPMC of 23 February 2020, DPCM of 25 February 2020, DPCM of 1 March 2020, DPCM of 4 March 2020, DPCM of 8 March 2020 [6], DPCM of 9 March 2020 and DPCM of 11 March 2020[7] as well as DPCM of 22 March 2020 (in relation to this latter, please see the following Paragraph)[8].

Decree Law No. 9 of 2 March 2020 (“D.L. 9/20”) provides in particular that “the use of personal protective equipment having the same protective efficacy as that required for personal protective equipment contemplated by the current legislation is permitted” (Article 34, paragraph 2).

As far as relevant, it should be noted that the DPCM of 11 March 2020 has provided for the suspension of certain activities[9]; as regards those activities not suspended it provides particular that the respect of the interpersonal safety distance of one metre must be guaranteed; moreover, it stresses that “for all non-suspended activities, the maximum use of smart working methods is to be encouraged”.

Reference should also be made herein to Decree Law No. 18 of 17 March 2020 (“D.L. 18/20”), which provides in particular that:

• quarantine with active surveillance of individuals who have had close contact with confirmed cases of widespread infectious disease (referred to in Article 1 of D.L. 6/20) does not apply to employees of companies engaged in the production and dispensing of drugs and medical and diagnostic devices as well as in the related research activities and the integrated supply chain for subcontractors. Workers referred to in the previous sentence shall suspend their activity in case of respiratory symptoms or if they have tested positive for COVID-19 (Article 14 of D.L. 18/20);
• with regard to DPIs, it is specifically provided that:
  • without prejudice to the provisions of Article 34 of D.L. 9/20, it is permitted to produce, import and place on the market surgical masks and personal protective equipment in derogation from the provisions in force; in this regard, INAIL’s ruling on the compliance of personal protective equipment with the regulations in force is in any case required (Article 15)[10];
  • for workers who are objectively unable to maintain the interpersonal distance of one meter in the course of their working activity, the surgical masks available on the market[11] are to be considered as PPE, pursuant to Article 74, paragraph 1, of Legislative Decree 81/08. To this end, people present on the entire national territory are authorized to use filtering masks without the EC mark and produced in derogation from the current regulations on marketing (Article 16)[12];
• the Coronavirus infection is expressly considered equivalent accidents: “in cases of confirmed coronavirus infection (SARS- CoV-2) at work, the certifying doctor shall draw up the usual accident certificate and send it electronically to INAIL, which, in accordance with the provisions in force, shall ensure the relevant protection of the injured person”[13] (Article 42, paragraph 2);
• the obligation to provide training for theoretical updating courses is confirmed for the personnel who must carry out the work necessary to restore the electricity service on the national territory: “in order to guarantee the continuity of the activities that cannot be postponed for the performance of the work necessary to restore the electricity service on the entire national territory, the qualifications already held by the relevant workers shall remain valid until 30 April 2020, even in cases of temporary impossibility to carry out the practical updating courses. This is without prejudice to the employer’s obligation to provide theoretical updating courses, also by distance learning in compliance with the containment measures adopted for the epidemiological emergency due to COVID-19" (Article 45).

In addition, the DPCM of 22 March 2020 has expressly not affected (and has extended to 3 April 2020) the Ordinance of the Minister of Health of 20 March 2020; in so far as it is interest here, it provides, that “food and beverage services located inside railway stations and lakes facilities, as well as in the service and refuelling areas shall be closed, with the exception of those located along motorways, which may only sell take-away products to be consumed outside the premises; those located in hospitals and airports remain open, with the obligation to guarantee in any case the interpersonal safety distance of at least one metre”.

Finally, Decree Law No. 19 of 25 March 2020 (“D.L. 19/20”) has established a new framework of regulatory sources to manage the Coronavirus emergency, providing for the possibility to adopt – in specific parts of the national territory or, if necessary, on the whole of it - containment measures through DPCM and, to a limited extent, with measures of other authorities (prefects, mayors, regions, Ministry of Health), and almost entirely repeals D.L. 6/20. However, Article 2, paragraph 3, of D.L. 19/20 provides as follows: “This is without prejudice to the effects produced and acts adopted on the basis of decrees and ordinances issued pursuant to Decree Law No. 6 of 23 February 2020, converted, with amendments, by Law No. 13 of 5 March 2020, or pursuant to Article 32 of Law No. 833 of 23 December 1978. The measures already adopted by the decrees of the President of the Council of Ministers adopted on 8 March 2020, 9 March 2020, 11 March 2020 and 22 March 2020, as in force on the date of entry into force of this decree, shall continue to apply in accordance with their original terms. The other measures, still in force on the same date, shall continue to apply for a further period of ten days”.

4. The DPCM of 22 March 2020: permitted activities and suspended activities

In addition to the provisions of the DPCM of 11 March 2020 and the ordinance of the Minister of Health of 20 March 2020, the DPCM of 22 March 2020 has provided in particular that:

• all industrial production and commercial activities are suspended, with the exception of those listed in Annex 1 of DPCM of 22 March 2020[14], (as last amended by the Decree of the Ministry of Economic Development – “MISE” of 25 March 2020[15]) (and subject to the provisions of the same DPCM of 22 March 2020 concerning by way of example professional activities, as well as commercial activities[16]);
• activities that are functional to ensure the continuity of the supply chains of the activities listed in Annex 1 are still allowed, subject to notification to the Prefect of the province where the production activity is located, in which the companies and administrations benefiting from the products and services related to the allowed activities shall be specifically indicated (it being understood that the Prefect may anyway suspend said activities);
• production, transport, marketing and delivery activities concerning pharmaceuticals, health technology and medical-surgical devices as well as agricultural and food products are still allowed. Any activity that is in any case functional to deal with the emergency is also permitted;
• activities of plants with a continuous production cycle whose interruption would result in serious damage to the plant itself or a danger of accidents are allowed, subject to notification to the Prefect of the province where the production activity is located (it being understood that the Prefect may anyway suspend said activities).

It should be noted, however, that production activities to be suspended pursuant to point a) may still continue if organised remotely or using smart working.

On the other hand, companies whose activities are not suspended “shall comply with the contents of the common protocol for the regulation of measures to combat and contain the spread of the COVID-19 virus in the workplace signed on 14 March 2020 between the Government and the social parties” (in this respect, please see Paragraph 5 below). Therefore, said Protocol is binding on all employers.

5. The Protocol of 14 March 2020

The Protocol of 14 March 2020 (attached hereto), applicable to all non-suspended activities, provides first of all - without prejudice to the encouragement of smart working - that[17]:

1. the activities of business departments that are not essential to production must be suspended;
2. safety protocols against contagion must be implemented and, where it is not possible to respect the interpersonal safety distance of one metre as the main containment measure, individual protection devices must be adopted;
3. sanitation operations in the workplace must be encouraged, also using forms of social shock absorbers for this purpose;
4. for productive activities only, it is also recommended that movement within sites be limited as much as possible and access to common areas be restricted.

The additional measures envisaged relate to the following aspects:

• information for workers;
• how to enter the company;
• access modalities for external suppliers;
• cleaning and sanitation in the premises[18];
• personal hygiene precautions;
• PPE[19];
• management of common areas (such as canteens and changing rooms);
• company organisation (such as transfers and remodelling of production levels);
• management of entry and exit of employees;
• internal transfers, meetings, training;
• management of a symptomatic person in the company;
• health surveillance.

It should be noted that the measures provided for in the Protocol of 14 March 2020 are “to be supplemented with other equivalent or more decisive measures according to the peculiarities of one’s own organisation, after consultation with the company trade union representatives”.

In this regard, companies must adopt a “regulatory protocol” and set up a Committee for the application and verification of the rules of the aforementioned regulatory protocol with the participation of the company trade union representatives and the RLS.

6. Further measures

It should be noted that, besides the implementation of the provisions of the Protocol under Paragraph 5 and the provisions under Paragraphs 3 and 4, the employer shall:

• update the risk assessment under Article 29, paragraph 3, of Legislative Decree 81/08 due to changes in the production process and/or work organisation resulting from the implementation of the provisions referred to in the Paragraphs 3 and 4;
• adopt all the measures provided for in the Consolidated Act on Safety (taking into particular account the specific provisions mentioned in the previous paragraphs), particularly in relation to the provision of adequate PPE, the cleanliness and healthiness of workplaces, and the information and training of workers, including  by distance learning (under Paragraph 2).

7. Brief notes on risks for companies in case of breach of applicable law

It should be noted that Article 4 of D.L. 19/20 provides for a series of sanctions related to the breach of the containment measures (depending on the circumstances, administrative fines and/or disqualification sanctions, criminal sanctions)[20].

In general, it should also be noted that, regardless of the occurrence of harmful events, failure to comply with applicable legislation on safety at work is subject to criminal sanctions[21].

Moreover, infecting a worker causing his or her illness or death may trigger liability for the offenses referred to in Articles 589[22] and 590[23] of the Italian Criminal Code as well as to the corporate administrative liability under Legislative Decree No. 231 of 8 June 2001 (in the event of lack or inadequacy of the Organisational Model)[24].

In the event of injury or death of workers, such violations could also constitute one of the grounds for any action for damage brought by the worker or third parties, as well as INAIL’s recourse action for the recovery of the sums paid by INAIL's as compensation.

This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For further information please contact your counsel or send an email to the following address: corporate.commercial@advant-nctm.com or to the following lawyers: Paolo Gallarati, Francesca Bonino or Valentina Cavanna.

[1] This is reasonably without prejudice, where applicable, to the provisions and responsibilities in relation to the management of biological risk set out in the Testo Unico Sicurezza, already referred to in the circular letter of the Ministry of Health of 3 February 2020 “Indications for personnel engaged in services/shops who have contact with the public".

[2] Paragraph 3 goes on by stating that: “As a result of said revision, prevention measures must be updated. In the cases referred to above, the risk assessment document must be revised, in accordance with the procedures set out in paragraphs 1 and 2, within thirty days of the respective causes. Even in the case of revision of the risk assessment, the employer must in any case give immediate indication, through suitable documentation, of the updating of the prevention measures and immediately inform the workers’ safety representative. The workers’ safety representative shall have access to said documentation upon request”.

[3] According to Article 74, first paragraph, of Legislative Decree 81/08, personal protective equipment is any equipment intended to be worn and kept by the worker in order to protect him/her against one or more risks that may threaten his/her safety or health at work, as well as any complement or accessory intended for such purpose.

[4] Article 77 of Legislative Decree 81/08 also provides in particular for the following:

“2. The employer, also on the basis of the rules of use provided by the manufacturer, shall identify the conditions when a DPIs must be used, especially with regard to the duration of use, according to:

(a) the extent of the risk;

(b) the frequency of exposure to the risk;

(c) the characteristics of each worker’s workplace;

(d) the performance of the DPIs.

(...)

4. The employer shall:

(a) maintain the DPIs in good working order and guarantee its hygienic conditions, through the necessary maintenance, repairs and replacements and in accordance with any instructions given by the manufacturer;

(b) ensure that the DPIs is used only for its intended purpose, save in specific and exceptional cases, in accordance with the manufacturer’s information;

(c) provide comprehensible instructions for the workers;

(d) assign each DPIs for personal use and, where circumstances require the use of the same DPIs by several persons, take appropriate measures to ensure that such use does not create any health and hygiene problems for the various users;

(e) inform workers in advance of the risks against which the DPIs protects them;

(f) make available adequate information on each piece of DPIs at the company or production unit;

(g) establish the company procedures to be followed, at the end of use, for the return and storage of DPIs;

(h) ensure adequate training and organise, if necessary, specific training on the correct use and practical usage of the DPIs”.

[5] Measures that can be adopted include the following: prohibition to leave the municipality or area concerned for all persons however present in the municipality or area; application of the quarantine measure with active surveillance to people who have come into close contact with confirmed cases of widespread infectious disease; shutdown of all commercial activities, with the exception of commercial activities aimed at the sale of basic necessities; suspension of work activities for companies, except for those providing essential services and public utilities and those that can be carried out at home; suspension or limitation of the performance of work activities in the municipality or area concerned as well as of work activities of the inhabitants of said municipalities or areas carried out outside the municipality or area indicated, subject to specific exceptions, including with regard to the conditions, limits and methods of use of smart working.

[6] The provisions of DPCM of 1 March and 4 March 2020 have ceased to have effect from the date of effect of the provisions of the DPCM of 8 March 2020.

[7] With the DPCM of 11 March 2020 (effective from 12 March 2020 to 25 March 2020, extended to 3 April 2020 by the DPCM of 22 March 2020), the provisions of the DPCM of 8 March 2020 and 9 March 2020 cease to be effective, while the provisions of the DPCM of 11 March 2020 shall apply cumulatively with those of the DPCM of 22 March 2020.

[8] The abovementioned DPCM were accompanied by measures issued by mayors, regions and ordinances of the Ministry of Health.

[9] In particular, Article 1 provides, inter alia, as follows: “1) Retail trade activities are suspended, except for food and basic necessities sales activities listed in Annex 1, both in the context of neighbourhood shops and in the context of medium and large-scale distribution, including those in shopping centres, provided that access is allowed only to said activities. Markets are closed, regardless of the type of activity carried out, except for activities aimed at the sale of foodstuffs only. Newsstands, tobacconists, pharmacies and para-pharmacies shall remain open. In any case, the interpersonal safety distance of one meter must be guaranteed. 2) Activities of catering services (including bars, pubs, restaurants, ice-cream parlours, pastry shops) are suspended, except for canteens and continuous catering on a contractual basis, provided that the interpersonal safety distance of one metre is guaranteed. Catering with home delivery is allowed, provided that it is compliant with health and hygiene regulations, both in terms of packaging and transport. Food and beverage services are also open in the service and refuelling areas located along the road and motorway network and inside railway stations, airports, lakes facilities and hospitals, provided that the interpersonal safety distance of one metre is guaranteed. 3) Activities related to personal services (including hairdressers, barbers, beauticians) other than those identified in Annex 2 are suspended. 4) Banking, financial and insurance services, as well as the activities of the agricultural, livestock and agri-food processing industries, including the supply chains providing goods and services, shall remain guaranteed, in compliance with health and hygiene standards (…)”.

[10] In relation to Article 15 and the subsequent Article 16, see also the Circular of the Ministry of Health of 18 March 2020, available here.

[11] Whose use is regulated by Article 34, paragraph 3, of D.L. 9/20, which states: “In relation to the emergency referred to in this decree, in accordance with the guidelines of the World Health Organization and in compliance with current scientific evidence, it is permitted to use surgical masks as a suitable device to protect health workers; masks without the EC mark may also be used after evaluation by the Istituto Superiore di Sanità”.

[12] Article 43, paragraph 1 also provides that: “In order to support, in safety, the continuity of the production processes of companies, following the coronavirus health emergency, Inail the (national insurance institute for accidents at work) shall, by 30 April 2020, transfer to Invitalia the amount of 50 million euros to be paid to companies for the purchase of devices and other personal protective equipment, using the resources already allocated in the 2020 budget of said institute for the financing of the projects referred to in Article 11, paragraph 5, of Legislative Decree no. 81 of 9 April 2008”.

[13] The provision goes on stating that: “INAIL benefits in proven cases of Coronavirus infections at work shall be granted also for the period of quarantine or fiduciary stay at home of the injured person with the consequent abstention from work. The burden of the above accidents lies with the insurance management and they are not taken into account for the purposes of determining the fluctuation in the average rate for accident trends pursuant to Articles 19 et seq. of the Interministerial Decree of 27 February 2019. This provision shall apply to public and private employers”.

[14] By way of example: food industry; beverage industry; manufacture of basic pharmaceutical products and pharmaceutical preparations; wholesale trade in food products; wholesale trade in pharmaceutical products; third party packaging and wrapping activities; warehousing and transport support activities.

[15] https://www.gazzettaufficiale.it/eli/id/2020/03/26/20A01877/sg 

[16] With reference to commercial activities, Article 1, letter a), of the DPCM of 22 March 2020 states that “For commercial activities the provisions of the decree of the President of the Council of Ministers of 11 March 2020 shall remain unchanged”. In this regard, the abovementioned DPCM of 11 March 2020 provides that “Retail trade activities shall be suspended, except for activities aimed at the sale of food and basic necessities listed in Annex 1”.

[17] Hence, said measures no longer apply only to production activities as indicated in the DPCM of 11 March 2020, but to all non-suspended activities.

[18] In this regard, see also the circular of the Ministry of Health of 18 March 2020 on “Disinfection of outdoor environments and use of disinfectants (sodium hypochlorite) on road surfaces and urban pavements to prevent the transmission of SARS-CoV-2 infection”, available here.

[19] See also the circular of the Ministry of Health of 18 March 2020 on “Pneumonia from new coronavirus COVID-19 - additional information and precautions and operational guidance on DPIs use”, available here.

[20] More specifically, Article 4, paragraph 8, provides as follows: “The provisions of this article replacing criminal sanctions with administrative sanctions shall also apply to breaches committed before the date of entry into force of this decree, but in such cases the administrative sanctions shall be applied to the minimum extent reduced by half". The provisions of Articles 101 and 102 of Legislative Decree No 507 of 30 December 1999 shall apply mutatis mutandis.

[21] For example, the breach of the provisions on the supply of DPIs is punishable by imprisonment from three to six months or with a fine from Euro 3,071.27 to Euro 7,862.44 (Article 87, paragraph 2 of Legislative Decree 81/08).

[22] “Whoever causes by negligence the death of a person is punished with imprisonment from six months to five years.

If the act is committed in breach of the regulations for the prevention of accidents at work, the penalty is imprisonment from two to seven years. (...) In the case of the death of more than one person, or death of one or more persons and injuries to one or more persons, the penalty applied is the penalty that should be inflicted for the most serious of the crimes committed increased by up to three times, but the penalty cannot exceed fifteen years”.

[23] “Whoever causes by negligence personal injury to others is liable to imprisonment for up to three months or a fine of up to Euro 309. In case of serious injury, the penalty is imprisonment from one to six months or a fine from Euro 123 to Euro 619, if the injury is very serious, imprisonment from three months to two years or a fine from Euro 309 to Euro 1,239.

If the facts referred to in the second paragraph are committed in breach of the legislation for the prevention of accidents in the workplace, the penalty for serious injuries is imprisonment from three months to one year or a fine from Euro 500 to Euro 2,000 and the penalty for very serious injuries is imprisonment from one to three years. (...) In the case of injury to more than one person, the penalty applied is the penalty that should be inflicted for the most serious of the crimes committed, increased by up to three times; but the penalty for imprisonment cannot exceed five years. The crime is punishable on complaint by the injured party, except in the cases provided for in the first and second paragraphs, limited to facts committed in breach of the regulations for the prevention of accidents in the workplace or relating to hygiene in the workplace or which have led to an occupational disease”.

[24] However, depending on the circumstances, liability that may arise for other crimes such as the culpable disaster (disastro innominate colposo) according to Articles 434 and 449 of the Italian Criminal Code is not excluded.