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Covid-19 coronavirus: urgent health and safety measures and obligations for employers in Italy

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Livio Bossotto

Partner

Milan

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Valentina Barbanti

PSL Counsel

Rome

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25 février 2020

The very recent evolution of the Covid-19 coronavirus epidemic has triggered the implementation of a series of measures designed to prevent its further spread, including provisions aimed at protecting employees by limiting their access to the workplace.

Duty to protect employees

Given the current state of emergency, the obligations falling on any employer with regard to the protection of working conditions, as provided for under article 2087 of the Italian Civil Code (which requires that the employer should adopt those “measures which, based on the specific characteristics of the job, experience and technical features, are necessary to protect the physical integrity and moral personality of the employees”) as well as Legislative Decree 81/2008 (in particular with regard to biological risk), should be interpreted in connection with the various regulatory provisions put in place in the last few hours by national and local legislatures.

Emergency legislation 

As is well-known, the developments of last weekend have required urgent action on the part of institutional bodies,   which resulted in the promulgation and coming into force, on 23 February 2020, of Law-Decree No. 6/2020 (the Law-Decree) and of several Decrees of the Prime Minister implementing the Law-Decree (the DPCMs) as well as the order issued by the Ministry of Health in agreement with Lombardy Region (and, as from 10 March 2020, in the whole Italian territory) in order to limit circulation of people and avoid, as much as possible, spread of the contamination.

Measures for employers to manage employees during the emergency

Among the measures adopted, the Council of Ministers provided for the automatic application of smart working arrangements, even in the absence of individual agreements, to any employment relationship within the boundaries of the areas considered at risk and in national or local emergency situations, again in compliance with the principles of law No. 81 of 22 May 2017.

As a consequence, any employer, in agreement with its Safety, Prevention and Protection Representative and Occupational Health Doctor, and in line with its general duty of protection of employees’ working conditions, should assess whether to adopt specific measures, at least with regard to employees with particular physical or health conditions, such as pregnant women or people suffering from serious chronic diseases (who are specifically at risk in the event of a viral contagion) and therefore implement measures such as a paid leave of absence, use of holidays and leave or, where feasible, smart working arrangements. In the absence of such voluntary measures, or in the absence of a certified illness, workers have no choice but to go to work as usual.

Avoiding abuse of absence

On 24 February, the Fondazione Studi Consulenti del Lavoro published an in-depth analysis specifying that sick leave cases are exclusively represented by employees who are actually ill or are absent from work, having been placed under quarantine as prescribed by medical authorities (ie employees who are being monitored because they show symptoms ascribable to the virus). On the contrary, any absence from work for fear of contracting the virus is likely to represent merely a case of unjustified absence (which, in extremis, could result in dismissal). Without specific orders by the authorities, the epidemic per se is in fact insufficient to justify any absence from work.

In any event, across the nation, operators who are in direct contact with the public should implement the basic measures recommended by Circular No. 3190 dated 3 February 2020 issued by the Ministry of Health, such as installation of antibacterial gel dispensers (to ensure hands are constantly washed), effective cleaning of all areas and use of gloves or masks in the workplace.

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