As employees return to work in Italy, this article tackles the issue of employers’ liability when an employee contracts coronavirus and when the infection will be a ‘workplace accident’.
Resumption of economic activities in Italy started partially on 4 May and will be completed in the upcoming weeks, unless there is a sharp increase in infections. It will involve several measures that employers will have to take in order to ensure the complete safety of the working environment. From 18 May, almost all economic activities have resumed with strict rules and health and safety measures applied. Some exceptions are still in place.
One point of debate these days concerns the civil and criminal liability of employers in the event an employee becomes infected in the workplace.
According to the latest provisions of the Government and the social public insurance institutions (INAIL), there are in fact, scenarios in which liability, including criminal liability, could arise for the employer in the event of Covid-19 infection in the workplace if the necessary measures have not been taken to prevent exposure to the risk.
According to current legislation, the employer, is responsible for any accident or illness caused to an employee during his or her working activity when the health and safety measures are not considered appropriate and sufficient. In establishing this, there are different levels of supervision and safety and health standards that the employer must apply to protect the psychological and physical health of the workforce. The employer, in collaboration with the competent doctor, unions and under the supervision of INAIL must implement all necessary safety measures to protect employees and to avoid civil and/or criminal liability in the event of accident or illness.
Despite this period of great uncertainty and difficulty (especially in the scientific field) in identifying and fighting Covid-19 infection, the Government has expressly declared that Covid-19 infection in the workplace will be considered an ‘accident at work’ and not ‘illness’, meaning the employer would be considered responsible for it.
This distinction is very important but it does not strictly affect the compensation payment: it has been ruled that the period of abstention from work caused by Covid-19 infection contracted during work time (including any period of quarantine or home stay of a sick person during which he or she cannot work), should be paid by social public insurance institutions involved in accidents at work (namely INAIL).
One of the critical points concerns the need to establish whether the infection occurred during work time. This wis absolutely not easy, since it is clear that given the long incubation period there can be no certainty about the place and cause of the infection and whether it occurred during work time or in the employee’s private life.
It will be doctors’ duty to verify that Covid-19 infection actually took place in the workplace. This will be established by INAIL through a medical legal assessment process: it will be INAIL’s duty to prove through this assessment whether the infection took place in the workplace or otherwise. The doctor’s opinion will therefore be very important: he or she must evaluate any possible responsibility of the employer, and send the report to INPS (for illness) or INAIL (for an accident).
Moreover, the law expressly provides that even though Covid-19 cases qualify as accidents at work, they will not be taken into account for the purposes of determining variations in the average rate of the company’s accident trend.
Employers will not be liable for infections from Covid-19 that occurred during normal travel from home to work, since they can be classified as accidents ‘in itinere’ and it will always be up to the public insurance institution to pay the indemnity to the employee. This is the reason why the health and safety protocols for ‘Phase 2, require employers to organise, when possible, organisation and alternative means of transportation rather than private ones, to avoid possible infection and gatherings of employees in public places, which would threaten the business continuity of the organisation if the virus spreads into the workplace.
Discussions are still ongoing also because the current position may prevent employers from opening due to fear of criminal consequences, despite the specific health and measures put in place. Trying to clarify (and maybe reassure companies) over the past weekend, INAIL issued a press communication stating that the employer’s liability needs to be proven and mere statement by the employee to INAIL is not sufficient to start a criminal prosecution; that the principle of the presumption of innocence would protect the employer in any case, and it will be public prosecutor’s duty to prove the employer’s possible liability, which must be strictly ascertained through proof of fraud or negligence (i.e. this would not arise if employers apply the strict H&S rules or the protocol).
KLIEMT.Arbeitsrecht is a member of Ius Laboris, an international alliance of leading law firms providing specialised services in employment law.