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).
Considering the statutory requirements, 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 employers operating in regions with high Covid-19 transmission rates should carry out deep sanitization of the work premises before re- opening.
Who should be involved in the decisions to return to the workplace?
The employer makes the decision in consultation with 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).
What can the prudent employer do to ensure physical distancing in terms of the work space?
The required physical distancing in terms of the work space is 1 metre. To ensure this employers should:
- set maximum number of employees who may access common working areas ( for example, kitchens canteens; and coffee break points) and establish maximum time limit periods for staying in those areas
- ensure constant ventilation of the common areas
- if necessary, consider redesigning the working spaces;
- schedule entry and exit by workers at staggered times
- limit to the extent possible the employee’s contact with sub-contractors or outsourced service providers.
- 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.
What can the prudent employer do to ensure physical distancing in temporal terms?
In order to ensure physical distancing, employers are encouraged to set up “staff turnover schemes” (splitting the employees into 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. In part, this agreement provides that the employer must:
- provide information to the employees (and to everyone accessing the company premises) regarding Covid-19 protection measures that have been taken. This information should be communicated in a written brochure, handed to the relevant persons, or displayed in easily visible places at the company premises. Employees shall also receive specific information about the proper use of PPE;
- provide employees with hand sanitizer, available at dispensers located in visible and highly accessible places
- ensure the periodical cleaning of any working tools used by the employees (for example, computer keyboards; monitors and mouse; as well as food and beverage dispensers)
- provide employees with appropriate PPE ( for example, face masks and disposable gloves.)
- ensure daily cleaning of the company premises and sanitization on a regular basis; and
- form a company-level committee (comitato aziendale), to monitor 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 screening, 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 the employee has tested negative to the virus.
The employer is also allowed to screen the employees (with swabs or blood tests) on a voluntary basis.
The employer must require that any employee who experiences Covid-19 symptoms promptly informs the HR Department. Breach of this obligation by the employee may result in disciplinary proceedings.
- 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, such prohibition exclusively refers to those activities which are complementary to the company’s core business. Business travel which refers to the company’s core business may be permitted, on a case by case assessment basis, 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?
In deciding which employees should return to the workplace , employers should consider the company’s organizational and productive needs, and those functions which require the physical presence of an employee.
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?
Generally, employees are not entitled to refuse to return to the workplace unless an explicit prohibition has been provided for by the relevant Government Authorities (i.e. national, regional or local authorities).,
Such behaviour could therefore entitle the employer to start disciplinary proceedings.
What other considerations should the prudent employer be thinking about at this time?
In addition to the above, the employer should be informed and comply with regional or local guidelines or requirements for back-to-work, as well as specific obligations provided for by trade associations and trade unions at a sectoral level.
What are the safety and employment issues for consideration regarding the vaccines?
The current supply of the vaccine in Italy is sufficient only to inoculate a small percentage of people, so mandatory vaccination is not a possibility at this time. However, companies are looking ahead and one of the topics at the forefront is whether employers can make the COVID-19 vaccination mandatory for certain employees once it is established that a genuine need for vaccination exists for a specific employee, or category of employees to effectively perform their required tasks. In that case, a failure to get the vaccine may be a case of “lack of fitness to work.” Indeed, an unreasonable and unjustified refusal on the part of the employee to be vaccinated at the request of the employer may be viewed as a disciplinary issue, in line with employment case law in Italy with regard to ensuring employees’ health and safety.
Under art. 2087 of the Italian Civil Code, an employer is required to “take all necessary measures in order to protect the physical integrity of workers.” While art. 32, paragraph 2, of the Italian Constitution provides that “no one can be obliged to have a medical treatment, except by virtue of a provision of law,” this fundamental Constitutional right relates to the relationship between the State and its citizens, and is not directly applicable to the employer-employee relationship.
It is possible to identify many instances where the Italian Constitution provides a particular freedom, but where the employer-employee agreement restricts such a freedom. For example, the Constitution grants all citizens the right to “freely circulate,” but employment agreements may regulate the movements of an employee during working hours. The point is therefore not whether an employee is free to decide whether or not to be vaccinated against COVID-19, despite any request from an employer, but what are the consequences to the employer-employee relationship in the event that the employee refuses the vaccination. In particular, this could have consequences on the employee’s ability to execute work duties under the employment contract and also potential liabilities for the company with respect to protecting the health and safety of other workers.
Moreover, a “Shared Protocol” regarding COVID-19 protection measures was established in Italy when the virus first started to spread in April 2020. This Protocol provided guidance to companies regarding their operations in the midst of the most challenging times of the outbreak. Naturally, that Protocol did not contemplate vaccination, because at the time it did not exist. However, it was generally accepted that the measures provided for by the Protocol (mask-wearing, temperature-taking, distancing, cleaning and disinfecting, etc.) could be combined with “other equivalent or more incisive measures,” based on a company’s “organizational peculiarities,” in order to avoid, where possible, suspensions and closures that could potentially result in unexpected costs and damages not only to the company, but to the general community and population. Moreover, the protection obligation provided for by art. 2087 of the Italian Civil Code provides that health protection measures must be updated from time to time, on the basis of “experience and technique.” Now that scientific progress has made the COVID-19 vaccine available, it may be argued that, at least in certain cases, the Protocol should include mandatory vaccinations.
In the end, the question of mandatory vaccinations will be decided by companies, workers and trade unions, which will have to collaborate to create the conditions for a full return to the workplace in a safe manner, which may include adopting reasonable mandatory vaccination rules for employees.