What risk mitigation efforts should the prudent employer take before employees return to the workplace?
Italian statutory law provides for a general employers’ duty to guarantee the health and safety of their employees. Article 2087 of the Italian Civil Code, specifies that the employer is required to eliminate the risks present in the workplace in light of the existing technical knowledge and, if this is not possible, to minimise them.
Further employers’ obligations relating to the employees’ health and safety are also provided for by Legislative Decree no. 81/2008 (Consolidated Law on the protection of Health and safety in the workplace).
In light of the above obligations, the employer should carry out a risk assessment of the workplace, in order to produce a risk assessment document (Documento Valutazione Rischi or DVR), which describes the risks existing in the workplace, the level of exposure of workers to the risk and the necessary measures to be implemented by the company. This risk assessment is required to consider the potential biological risks deriving from Covid-19.
In addition to the risk assessment, for those regions who have registered high rates of Covid-19 transmission (e.g. Lombardia), the employer must complete an additional, deep sanitization of the company workplace before the re-opening takes place.
Who should be involved in the decisions to return to the workplace?
Each employer shall assess the opportunity to return to the workplace, after having carried out an appropriate risk assessment of the workplace, with the involvement of the Prevention and Protection officer (Responsabile del Servizio per la Prevenzione e Protezione or RSPP); the Company’s Doctor (Medico Competente) and the Workers’ Safety Representative (Rappresentante dei Lavoratori per la Sicurezza or RLS), in light of the functions attributed to them by Legislative Decree no. 81/2008.
What can the prudent employer do to ensure physical distancing in terms of the work space?
Employees shall maintain a minimum interpersonal distance equal to 1 metre, which shall be complied with at all times.
Therefore, employers are required to adopt specific measures in order to ensure such minimum social distancing:
- The employees’ access to common working areas (including canteens; smoking areas etc…) shall be allowed according to fixed quotas and the break time should be limited
- The employers shall also ensure a constant ventilation of the common areas
- If necessary, employers are encouraged to redesign the working space;
- The employer is also encouraged to schedule personnel entry and exit in a staggered time
- The employer should limit any contact between the employees and any sub-contractors or outsourced services.
- Encourage virtual meetings and smart working
- Resort to empty/unused rooms and meeting rooms to create workstations
- Increase space between workstations where several workers are working at the same time in the same room, so that workstations are properly spaced apart from each other
What can the prudent employer do to ensure physical distancing in temporal terms?
In order to ensure temporal social distancing, employers are encouraged to set up “staff turnover schemes” (splitting the employees into groups), in order to minimise contact between the employees and create distinct and clearly recognisable groups.
The employer may also need to consider changes to the working hours of the employees’ groups, in order to reduce the simultaneous presence of a huge number of employees at the workplace.
What protections should the prudent employer consider implementing, in addition to physical distancing?
A multi-industry union agreement has been signed between national unions and the Italian Government on 14th March 2020 and later updated. This agreement provides, among others, the following protection measures:
- The employers’ obligation to provide information to the employees (and to everyone accessing the company premises) about the measures of protection against the Covid-19 provided for by Italian Authorities through informative brochures, handed or displayed in easily visible places of the company premises. Employees shall also receive specific information about the measures adopted by the company and about the proper use of the personal protective equipment
- The employers’ obligation to provide employees with appropriate hand cleaners and sanitizers, through specific dispensers which shall be located in places which can be easily spotted
- The employers’ obligation to ensure the periodical cleaning of the working tools used by the employees (e.g. keyboard; computer monitors; mouse; food and beverage dispensers etc…)
- The employers’ obligation to provide employees with the personal protective equipment which are deemed to be appropriate following a case by case risk assessment (e.g. face masks; disposable gloves etc..)
- The employers’ obligation to ensure the cleaning of the company workplace on a daily basis and a sanitization on a regular basis (periodically)
It should be noted that each employer should also create a company-level committee (comitato aziendale), which monitors the employers’ compliance with the provisions of the multi-industry union agreement.
Please see here.
- Encourage frequent hand cleaning with soap and water
How can an employer screen its employees, including temperature testing, COVID-19 testing and questioning?
Employers are allowed to take the employee’s temperature before they enter the company premises and to deny access to any employee whose temperature is higher than 37,5° Celsius.
In addition to employment law obligations, the employer must comply with Data Protection obligations. Specific guidelines provided for by the above multi-industry union agreement and by the Data Protection Authority apply in order to ensure a proportional processing and storage of such data by the employer.
Please refer to the following links here and here (see paragraph “FAQ -Trattamento dei dati nel contesto lavorativo pubblico e privato nell’ambito dell’emergenza sanitaria”).
In circumstances where an employee tests positive to Covid-19, before allowing him/her to return to the company premises, the employer shall request that the employee provides a medical certificate, confirming that they test negative to the virus.
The employer is also allowed to screen the employees (i.e. through swabs or serological tests) on a voluntary basis.
Any employee who experiences Covid-19 symptoms shall promptly inform the HR Department. Please note that the breach of such obligation by the employee may result in disciplinary proceedings by the employer.
- Consider entering into agreements with clinics, aimed at providing employees with a test service upon request
What are the requirements regarding travel – either to or from the office or business travel?
The multi-industry union agreement signed between national unions and the Italian Government has temporarily prohibited any business travel within or outside the Italian territory.
However, please note that such prohibition exclusively refers to those activities which are complementary to the company’s core business, while any business travel which refers to the company’s core business may be permitted, on a case by case assessment, as long as all due health and safety protection measures are adopted.
- Encourage the use of private transport or shuttles
How does the prudent employer decide which employees should return to the workplace?
Employers shall select the employees who should return to the workplace on the basis of the company organizational and productive needs, having especially regard to those company departments whose functioning relies upon the employees physical presence.
Employers are also encouraged to favor smartworking if and when possible.
- Consider allowing for volunteers to return to work
What if an employee refuses to return to the workplace?
As a general comment, employees are not entitled to refuse to return to the workplace as long as an explicit prohibition has not been provided for by the Authorities (i.e. national, regional or local authorities), while employers shall ensure the adoption of appropriate health and safety measures.
Such behaviour could therefore entitle the employer to start disciplinary proceedings, in order to sanction said conduct.
What other considerations should the prudent employer is thinking about at this time?
Along with the obligations set out by statutory law and the multi-industry union agreement, signed between national unions and the Italian Government the employer should also comply with any further requirement provided for at regional or sectoral level.
In fact, additional and more stringent guidelines about the re-opening are likely to be provided at regional level, varying from region to region, on the basis of the regional epidemiological data.
Further obligations and guidelines may also be provided for by trade associations and trade unions at sectoral level.