Precautions that all employers must adopt
Responsibility of the employer. The employer is responsible for the health and safety of workers, including in relation to any biological risk, in consideration of the general safety obligation provided for by art. 2087 c.c. and the more specific provisions of articles 266 and 267 of Legislative Decree 81/2008. Every company must therefore adopt all possible safety measures, including to prevent the risk of contagion from Covid-19 (known as coronavirus), as expressly established by law or in any case identifiable in consideration of the particularities of the job, experience and technical and scientific knowledge.
General measures. In observance of circulars no. 1141/2020 and 3190/2020 of the Ministry of Health, the employer will certainly have to at least ask the workers to:
- wash their hands frequently and thoroughly, also with the use of sanitising dispensers in common areas;
- maintain the hygiene of every workplace, with the use of chlorine or alcohol-based disinfectants;
- avoid contact with people suffering from acute respiratory infections;
- do not touch their noses, eyes and mouths with their hands;
- cover noses and mouths in case of coughing or sneezing.
It may be considered appropriate (even if not normally mandatory) to equip the staff who are in continuous and direct contact with the public with gloves and masks.
Control and Risk Assessment Documents. The employer must also check the observance of the aforementioned precautionary measures by their personnel, including advising them to contact the toll-free number 1500 immediately in case of doubts or needs.
Companies must also update the Risk Assessment Document (DVR), including identifying any other measures suitable for the protection of personnel.
Specific measures. Of course, specific and more rigorous measures will have to be used with reference to subjects (such as health workers) who have had direct contact with infected people, as well as in suspected cases of people with serious and undiagnosed respiratory infections, or subjects coming from areas in which an infection has occurred. These people must not have access to the company and the employer must immediately report the case to the health services.
Temperature control. The employer has no specific power to check the body temperatures of staff, on entrance to the workplace and in case of necessity. However, in consideration of the particular diligence required for the purpose of protecting the health and safety of employees, it can be considered possible to proceed, at least in areas where contagions have already occurred, to check the body temperature of employees who are accessing the workplace. An employee who refuses to be checked for body temperature could, in this case, be refused entry to work as a precaution.
Telework and suspension of work. Where possible, especially in relation to employees returning from risk areas, it is advisable to resort to forms of remote working (smart-working, teleworking) or, if the opportunity arises, to take measures to suspend work.
Companies that decide to suspend their work and are unable to demonstrate the inevitability of the decision in the face of a concrete risk of contagion, are required to pay the remuneration.
However, if a worker decides by themselves not to go to work, this would be considered an unjustified absence.
Transfers. It is, of course, advisable not to send staff away to risk areas, and in any case, any refusal of the worker to do this cannot be considered a disciplinary matter.
Updates of precautionary measures. The safety and precautionary measures must however be updated and modified in consideration of future developments of the disease and of the consequent indications that will be provided by the Ministry of Health and the competent bodies.
COMPANIES SUBJECT TO WORK SUSPENSION MEASURES
The decree law. According to the decree law no. 6 launched on 22 February 2020 by the Council of Ministers, in areas where coronavirus cases occur, the competent authorities must adopt appropriate containment measures.
Measures. The decree law provides for various measures, including the closure of schools, commercial activities (excluding those of public utility and essential public services referred to in articles 1 and 2 of law no. 146 of 12 June 1990, including the commercial establishments for the purchase of basic necessities) with the provision that access to essential public services and commercial establishments for the purchase of basic necessities is subject to the use of personal protective equipment.
Suspension of work. Suspension of working activities for businesses is also included among the possible measures (with the exception of those that provide essential and public utility services, including animal husbandry, and those that can be carried out in home or remotely), with suspension of the performance of work activities for workers residing in the municipality or area concerned, even if they take place outside the municipality or area indicated.
Agile work. Article. 3, paragraph 1, of the Prime Minister's Decree of 23 February 2020, implementing the aforementioned decree law, provides that "the agile working method governed by articles 18 to 23 of law no. 81 of 22 May 2017 is automatically applicable to any employment relationship within areas considered at risk in situations of national or local emergency in compliance with the principles dictated by the aforementioned provisions and also in the absence of the individual agreements provided for therein". This provision therefore seems to specify that smart working can also be adopted without the agreement between the parties, but in compliance with the principles established by the reference legislation.
How to consider workers' absences. In the case of suspension of the company activity by order of the public authority, these are of absences not attributable to the employer, who will not be obliged to pay the salary nor the contributions.
The absence of workers residing in quarantined municipalities is justified, but they should not be considered sick if they do not show symptoms of any kind. If they cannot be used for teleworking, it is possible to assume the use of holidays and permits or the use of ordinary layoffs.
Ordinary layoffs. It has already been reported by ministerial structures and operators as on the basis of the laws in force (see Legislative Decree no. 148 of 14 September 2015), for "business situations due to transitory events and not attributable to the company or employees [ ...] "(art. 11 co. 1 lett. A) companies can have recourse to ordinary layoffs (CIGO). In particular, the Ministerial Decree no. 95442 of 15 April 2016, then added, in art. 8, among the "reasons" for access to treatment, the "suspension or reduction of the activity by order of the public authority for reasons not attributable to the company or workers", "for events that occurred, not attributable to the company's default or liability or workers, due to sudden and significant events or by public authority orders determined by circumstances not attributable to the company ". It is therefore evident that, at least with reference to the areas affected by measures of the public authority (see for example, the ordinance of the Ministry of Health of 21 February 2020, also on the basis of the aforementioned decree, the order is already provided with minimum protection tools for job retention and management of employment relationships and business organisation.
Legislative Decree no. 148 of 2015 then provides, already today, some favourable provisions for the hypotheses of "interventions determined by objectively unavoidable events" (art. 12, paragraph 4), aimed at streamlining the procedural terms also of the union discussion, as well as mitigating the maximum limits of activation of social safety nets.
Upcoming interventions by the executive. The Minister of Labour duly summoned the social parties to activate a comparison and evaluate the useful tools already provided for by the system, as well as any interventions to be adopted in the current context of "necessity and urgency" in order to make them immediately accessible to the wider audience as much as reasonably possible.
