Employer organizations, with the support of the ‘Democratic’ Party, try to rule out responsibility for worker safety in case of Covid-19 infection. An awkward fall from grace.
Occupational safety, responsibilities and controls
The Consolidated Occupational Health and Safety Law (TUSL)-in stating the general and specific protection objectives-defines the characteristics that a workplace must comply with. Also referring to a set of requirements (structural, microclimatic, etc.) that the employer must adhere to in order to ensure the health and safety of workers. (1)
The primary responsibility of the employer is undisputed and indisputable, as noted above. (2) The Protocols containing the measures to contain contagion in the workplace-signed by the social partners on 14.3.20 and 24.4.20-supplement the Consolidated Text for all purposes, as clarified in the following section. And they define, among other things, the ‘presence of conditions that ensure adequate levels of protection for working people‘ as a sine qua non for the reopening or continuation of activities (3,4).
Inspections and penalties fall under the primary responsibility of the Prevention and Occupational Safety Services (SPRESAL), at the ASL prevention departments.
Piddiozie
Some Democratic Party deputies (sic!) submitted a written question to the Ministry of Labor and Policies, 5.5.20. Lamenting that the ‘equating illness with work injury can produce even very serious consequences on the employer, for whom in case of death from work injury there is criminal liability’.
Chiara Gribaudo, Romina Mura, Carla Cantone, Antonio Viscomi, and Deborah Serracchiani (who is responsible for, among other things, drastic cuts in public health care in Friuli Venezia-Giulia) therefore ask the minister ‘whether it does not consider it necessary to take appropriate initiatives, including regulatory initiatives, in order to limit (…) the equating of coronavirus infection with occupational injury’.
Guarantees
The undersecretary of the Welfare Senator Stanislaus Di Piazza, in his own response 6.5.20, however, clarified how the following apply to new coronavirus infections ‘the general principles applied for the recognition of benefits for all workers in case of injury, this is to avoid any possible discrimination.
According to the principles that regulate insurance against occupational accidents and diseases and, therefore, the current guideline on the treatment of cases of infectious and parasitic diseases, INAIL protects these morbid affections by framing them, for the insurance aspect, in the category of occupational accidents, through an equalization of the virulent cause with the violent one (…)
In order to pursue the objective of combining the continuation of work activities with the guarantee of safe working conditions, it is provided that failure to implement the Protocol that does not ensure adequate levels of protection for the worker will result in the suspension of the activity.’
Labor Law
The ‘Cure Italy’ decree, in Article 42, clarified that a worker infected in the line of duty is entitled to the protection typical of occupational accidents. (5) Thus, the employer is required to notify INAIL of the infection, which is responsible for verifying the correlation between illness and work activity and for paying compensation. We gather in this regard the comments of our friend lawyer Luigi Corrias, an experienced labor lawyer at the Milan Bar.
‘The safety protocols signed by Confindustria and trade unions are to be considered as obligations under the Consolidated Occupational Safety Act. With the consequence that if the employer fails to enforce them, the employer risks the prescribed penalties (fine or arrest). If illness then results from this non-application, criminal prosecution for culpable injury or, in the case of death, culpable homicide could be triggered.
INAIL clarified, among other things, that reporting for Covid does not lead to an increase in the insurance premium and that if the employer gives evidence that it has taken all protective procedures, it is exempt from liability.
Nevertheless, employer organizations are pushing for some sort of ‘shield’ that would preserve them from criminal risk, given the high incidence of contagion even for non-work reasons, challenging the equating Covid illness/work injury with all the possible implications, including criminal ones, against them. Frankly, it seems to me that such a ‘shield’ would nullify the scope of accident prevention obligations thereby exposing workers to unacceptable risks to the protection of their health.
I fully agree on the government response to the question, where it is first of all recalled that “according to the principles governing insurance against occupational accidents and diseases and, therefore, the current guideline on the treatment of cases of infectious and parasitic diseases, INAIL protects such morbid affections by placing them, for the insurance aspect, in the category of occupational accidents, through an equalization of the virulent cause with the violent one. Coronavirus contagions are not an exception to this rule and are, therefore, to be attributed, for all intents and purposes, within the scope of occupational accidents, and this on the basis of a well-established orientation of the Institute, medico-legal science, as well as jurisprudence.”
The government response goes on to point out how the multiplicity of the ways and occasions of contagion “make the configurability of civil or criminal liability of the employer operating within the rules particularly problematic,” with the result that “liability would be conceivable only residually, in cases of non-compliance with the provisions protecting the health of workers and, in particular, those issued by government authorities to counter the aforementioned epidemiological emergency.”
In conclusion, it seems to me that I can say, on the one hand, that (as stated in the response) “to exclude cases of new coronavirus infection on the occasion of work from the scope of INAIL protection would in fact be to fail to guarantee in a case of such seriousness the ordinary protection provided by the system.” On the other hand, employer liability will presumably be established (only) in cases of noncompliance with protective equipment. With the implication that, in case of contagion, if the employer proves that he has adopted the devices required by the protocols, he should be exempt from liability.’
Dario Dongo and Luigi Corrias
Notes
(1) Legislative Decree. 81/08 as amended
(2) Dario Dongo.
Covid-19, worker safety and liability.
. GIFT (Great Italian Food Trade). 17.3.20,
(3) Dario Dongo. Coronavirus, containment measures in work environments. Protocol 14.3.20. GIFT (Great Italian Food Trade). 14.3.20, https://www.greatitalianfoodtrade.it/sicurezza/coronavirus-misure-di-contenimento-negli-ambienti-di-lavoro-protocollo-14-3-20
(4) Amaranta Traversa, Sarah Lanzilli, Claudio Biglia, Dario Dongo. Covid-19 and occupational safety, Protocol 24.4.20. ABC. GIFT (Great Italian Food Trade). 1.5.20, https://www.greatitalianfoodtrade.it/sicurezza/covid-19-e-sicurezza-sul-lavoro-protocollo-24-4-20-l-abc
(5) Dario Dongo. Covid-19, ‘Cure Italy’ decree. Measures to benefit individuals, workers and businesses. GIFT (Great Italian Food Trade). 18.3.20, https://www.greatitalianfoodtrade.it/mercati/covid-19-decreto-cura-italia-le-misure-a-favore-di-persone-fisiche-lavoratori-e-imprese-abc
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
