Covid-19 risk and employer liability: how to protect workers’ health and not incur criminal penalties

March 1, 2021

The rapid spread of the Covid-19 virus, which has affected Italy since February 2020, has confronted organizations and employers with a particularly demanding challenge from the perspective of safety and health protection of their employees. Indeed, this new threat to workers’ health is in addition to pre-existing risk conditions, requiring companies to implement specific measures for employee training and risk containment.

Preventing the risk of the spread of Covid-19 within workplaces is essential to protect the health of all people present, but it is also a legal obligation that, if not complied with, exposes the company and employer to the risk of being sued, with possible serious consequences in terms of civil and criminal liability (See, for example, Articles 17 and 28 of Legislative Decree 81/08).

Employer’s liability in case of Covid-19 virus infection: what the regulations require

The legislation clearly states that the employer is the guarantor of the health and safety of his employees. This principle is enunciated in Article 2087 of the Civil Code and taken up with greater force in the Consolidated Occupational Health and Safety Act (Legislative Decree 81/08), where workers become all persons present in the work environment that, in which it is expressly stated that “The entrepreneur is obliged to adopt, in the exercise of the enterprise, the measures that according to the particularity of the work, experience and technique are necessary to protect the physical integrity and moral personality of the workers.” This principle is to be understood in a general sense, since the standard does not refer to the specific risks associated with the performance of the work task but speaks of the health of workers across the board, including workers who are not necessarily employees of that employer hosting them in its environments.

From a legal point of view, therefore, there is no doubt: the employer is obliged to protect the health of all people in their work environment, and the risk of contracting Covid in the workplace should be equated with any other risk that may pose a threat to their health. For this reason, Coronavirus infection contracted in the workplace is recognized as an INAIL injury (as confirmed by INAIL Circular No. 13 of April 3, 2020), just like any other infectious or parasitic disease contracted in the course of performing one’s duties.

If an employee contracts Covid-19 in the workplace and believes that the cause of the infection lies in the failure to comply with safety procedures, they have the right to take legal action against the employer, who could be exposed to criminal liability under articles 589 and 590 of the Penal Code (which pertain to negligent personal injury and manslaughter), further exacerbated by the failure to comply with regulations for preventing workplace accidents. Certainly, in the event of a legal process, the employer could defend themselves by demonstrating that they did everything within their power to prevent the risk of infection. This defense could involve listing the procedures they implemented to safeguard the health of their employees.

Preventing the risk of Covid-19 in the workplace: what needs to be done

As we have seen, the risk of being infected by the Covid-19 virus is equivalent to the risk of contracting any type of infection in the workplace. Therefore, we can find the guidelines for preventing this risk in the Consolidated Law on Health and Safety in the Workplace (Legislative Decree 81/08), which, in article 18, specifies some of the obligations that fall upon the employer, such as:

  • Timely inform the workers about the risk they may be exposed to (in this specific case, the risk of contracting the Covid-19 virus), explaining the related dangers and detailing the measures the company has taken to protect the employees.
  • Provide workers with the necessary Personal Protective Equipment (PPE). 
  • Monitor compliance with the rules and company provisions regarding safety, hygiene, and the use of individual and collective protective measures. Ensure that all individuals working in the company or accessing the premises for any reason are informed about the necessary conduct and adhere to the instructions.
  • Allow workers to verify, through the figure of the Workers’ Health and Safety Representative, the actual implementation of safety measures and health protection.

These guidelines, which are outlined in the Consolidated Law and generally pertain to the prevention of any type of risk, remain applicable even in the current pandemic situation. They constitute a fundamental reference point for safeguarding the health of workers.

Alongside these general regulations, specific legislation has also been issued more recently aimed at containing the spread of the virus in the current emergency situation. Indeed, all companies are required to adhere to the contents of the “Shared Protocol for the regulation of measures to contrast and contain the spread of the Covid-19 virus in the workplace,” signed on April 24, 2020. This protocol contains a series of practical guidelines essential for containing the risk.

The protocol outlines rules regarding the management of entrances to the company, the organization of shared spaces, temperature monitoring procedures, access for external personnel, cleaning and sanitization norms for workspaces, handling of symptomatic employees or visitors, as well as guidance on health surveillance and communication methods with the relevant authorities. Furthermore, the Protocol highlights the importance of informing employees and all individuals accessing the company through “the most suitable and effective methods” about the procedures to be followed and the regulations to be respected. It emphasizes the value of individual responsibility and the involvement of workers in all procedures related to risk containment.

The use of Best Available Technology (BAT): protection for the company and employees

Protecting employees from the risk of contracting the Covid-19 virus in the workplace is a particularly challenging task for companies. In recent months, we have learned that this virus is characterized by a high level of contagiousness, which facilitates its rapid spread within enclosed environments such as private residences, transportation, or indeed, workplaces where many people converge and share the same space for prolonged hours.

However, it is wrong to assume that employers lack the tools to address this challenge. The guidelines issued by health authorities provide an initial framework of interventions to contain the risk. A scrupulous adherence to these guidelines inherently contributes to protecting the health of workers and shields the company from the risk of being sued.

Of course, for this protection to be truly effective, it is fundamental that employers adopt an adequate organizational model and risk management system. In this regard, the Consolidated Law on Health and Safety in the Workplace specifies in Article 30 that the organizational model of the company must be constantly reviewed to ensure that the adopted measures remain effective over time. This includes considering any scientific and technological advancements that may occur. This aspect of the Consolidated Law is particularly crucial in the current situation. The Covid-19 epidemic was an unforeseeable event that increased the level of risk for workers. However, the novelty of the situation doesn’t exempt the employer from their responsibilities. When it comes to safety, continuously updating one’s internal organization is necessary, addressing new risks and identifying procedures capable of containing them.

By incorporating the guideline outlined in the Consolidated Law, several judgments from the Court of Cassation have affirmed that the employer is always required to equip themselves with the “Best Available Technology” (BAT). This refers to the most technologically advanced tools at their disposal to safeguard the health of workers. Unfortunate as it may be, if an employee were to contract Covid-19, the legal position of the employer would be fairly protected if they could demonstrate compliance with the regulations specified in Legislative Decree 81/08 and the Protocol for containing the spread of the virus. This would involve modifying their internal organization while simultaneously equipping themselves with the best technological solutions available.

In this particular moment, it’s crucial for companies to reorganize by selecting advanced technological solutions – such as the Kalmo suite, which enables continuous monitoring of the risk level to which each individual employee is exposed. It also allows for the management of PPE inventory and verification of proper device usage by workers. This helps protect employees’ health and shields the company from the risk of facing sanctions or legal proceedings.

Do you want to learn more about the legal obligations required to protect the health and safety of your employees, also concerning the risk of contracting the Covid-19 virus? Download our checklist and contact us.