Covid-19, worker safety and liability

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Covid-19 and worker safety. On 14.3.20, as noted above, the social partners signed the ‘Shared Protocol for the Regulation of Measures to Combat and Contain the Spread of Covid-19 Virus in the Workplace‘. Brief notes on responsibilities related to the implementation of containment measures in workplaces.

Contingency plan vs.. lockdown

The contingency plan agreed by the trade unions with the employers’ organizations on 14.3.20, under the coordination of the ministries concerned, responds to the twofold need to prevent paralysis of the economy of the system-country and ensure the continuity of supplies of essential goods. Agribusiness, chemical, pharmaceutical and health products first and foremost.

The lockdown adopted on 11.3.20 by the Prime Minister’s Office, after all, had preserved from closure until 25.3.20 precisely the retail distribution of the above-mentioned essential goods. In addition to hardware, personal hygiene and detergent materials, optics, electronics and home appliances, information technology and telecommunications.

The suspension of nonessential operational activities during the two-week lockdown would certainly have helped safeguard the health of workers and contain the risk of coronavirus infection. Allowing companies to organize containment measures, certainly not instantaneous. But the mechanical industry, which has always commanded (also) Confindustria, had the upper hand. And the assembly lines are running-even as an exception to the minimum distance of 1 meter, to apply to everyone but workers-even though the car dealerships are closed.

Continuation of production activities

The conditio sine qua non for continued production activities is the ‘presence of conditions that ensure adequate levels of protection for working people‘ (Protocol 14.3.20, Foreword). Therefore, worker protection must come through:

Procedures for entry and access to company premises, management of common areas,

– Work organization with privilege to smart working, shift work, reshaping of production levels,

– Daily cleaning and sanitizing of work spaces and tools,

Informing workers and visitors about hazards and practices to prevent them. Temperature checks and early warning in case of fever (>37.5° C), safe interpersonal distances, frequent hand washing and hygiene,

PPE (personal protective equipment, e.g., masks, goggles, gloves, gowns, caps and shoe covers) to be given to workers and visitors, cleaning fluids to be made available to all.

Application of measures

The concrete application of the measures established by the Protocol (in general and abstract terms) is entrusted to the primary responsibility of the employer, after ‘prior discussion with the trade union representatives present in the workplace, and for small enterprises the territorial representatives‘ (Protocol 14.3.20, Foreword).

However, the Italian manufacturing fabric is structured on microenterprises and SMEs that lack union representation. And neither individual workers nor entrepreneurs and their managers are ‘culturally equipped’ to deal with an entirely unprecedented pandemic.

Health authorities-after the 2001 constitutional reform-are subject to the jurisdiction of 20 regions and 2 autonomous provinces, competing with state jurisdiction. And to date, there is no guideline, shared in the State-Regions Commission, on how to apply the containment measures. (1)

The lighted match

In this fog, no one sees the lit match that has been left right in the hands of entrepreneurs and legal representatives of businesses and cooperatives. Since the measures set out in the Protocol are as undefined in refraining from specifying the level of protection that a face mask should provide as they are clear in defining the requirements on the employer.

The match can thus also set a factory on fire if one or more workers contract the virus in the workplace. Since the event itself would be evidence of the unsuitability of any measures taken to ensure the safety of workers. Thus entailing, among other things, the risk of even serious criminal charges. Not only the offense under Article 650 of the Criminal Code(failure to comply with the measures of authority) but also the crimes of malicious removal or omission of precautions against accidents at work (437 cp), injury or manslaughter, including multiple injuries. (2)

What risks?

Lawyer Luigi Corrias, a labor lawyer at the Milan Bar, whom we asked about the subject, explains that ‘it is difficult for noncompliance with the protocol that results in employee illnesses to constitute a work-related injury. In fact, occupational injury is defined as an event due to a violent, external cause that produces traumatic injury to an individual during his or her work performance.’

Instead, in the present case, there may be an illness caused by the employer’s failure to fulfill the obligations set forth in Civil Code Article 2087 (protection of working conditions), resulting in the employee’s right to obtain compensation for damages.’

Additional liability-under criminal law, as well as damages (under Article 2043 Civil Code)-if third parties are then possibly infected by the infected worker(s). And how will it be demonstrated that an appropriate risk assessment (of infection with a highly transmissible virus, even before or in the absence of symptoms) has been carried out, on the basis of which to have prepared appropriate preventive measures? Will insurance be enough, can the policy cover such risks?

The match, unfortunately, remains lit.

Dario Dongo

Notes

(1) Masks for example ‘must be approved by health authorities,’ according to the Protocol. A dangerous passing the buck, because the decision on the minimum level of respiratory protection must come based on a scientific risk assessment. And it certainly cannot be entrusted to the arbitrariness of individual managers over individual realities, nor to that of regions or autonomous provinces. Since in the absence of a nationally shared guideline-if at all, through an act of secondary legislation-an unacceptable asymmetry in the levels of protection of constitutional rights to occupational health and safety may occur

(2) The crimes of intentional injury and homicide could also be attributed to the individuals held responsible, by way of intent (i.e., conscious acceptance of the risk of the occurrence of the event)

(3) ‘The entrepreneur is obliged to take such measures in the conduct of the business as are necessary, according to the particular nature of the work, experience and technique, to protect the physical integrity and moral personality of the employees’ (Civil Code, Article 2087). See also Constitution of the Italian Republic, Articles 37 and 41