The coronavirus emergency has forced companies to face an array of unprecedented challenges, among them the requirements that ensure compliance with Legislative Decree No. 231/2001, which introduced corporate criminal liability in Italian legislation.
Failing to protect employees from workplace transmission of coronavirus could, in fact, establish—in the most serious scenario—the risk of severe injury to or the death of employees. Under certain conditions, that in turn may trigger corporate criminal liability pursuant to Legislative Decree No. 231/2001.
It is crucial, therefore, that companies put in place all necessary measures to protect their employees from the risk of infection in line with the various ministerial instructions, demonstrating their ability to carry out quick reorganization in order to ensure production continuity in what is objectively a very challenging framework.
The reorganization should start by means of a review of preventive measures, which are considered essential to fighting propagation of the virus.
The above review is not only appropriate, but also necessary, as it entails the obligation for companies to constantly assess risks to health and safety in the workplace, pursuant to section 2087 of the Italian Civil Code and to the Consolidated Law on the protection of health and safety in the workplace (Legislative Decree No. 81/2008). On the basis of that assessment, companies must take all appropriate measures to reduce risk exposure.
Companies should keep track of emerging developments based on recent additional measures introduced by the Prime Ministerial Decree of 11 March 2020 as well as by the Protocol on the contrast and mitigation of Covid-19 in the workplace of 14 March 2020 and consider taking the following actions to maintain a safe workplace and to appropriately monitor and respond to the situation:
1. provide information: it is important to keep employees updated on actions being taken to reduce risk of exposure in the workplace. This is carried out also by providing brochures in which are listed the instructions issued by the relevant authorities. Information mainly concern the obligation to (i) remain at home if the temperature exceeds 37.5° or in case of other flu symptoms, contacting the family doctor as well as the health authority; (ii) keep the safety distance; and, in general (iii) adopt virtuous hygienic behaviors.
2. risk assessment document (“DVR“) review: each company must take a proactive approach in facing the issue at hand by verifying, first of all, whether its DVR is appropriate in this new scenario, or whether it requires adjustments in light of the new situation and the new biological risk.
3. adopt preventive measures in order to comply with the duty of protection imposed upon companies, also pursuant to the Protocol of 14 March 2020. In particular, by way of example:
In this fast-evolving scenario where coronavirus continues to spread, it is more than likely that additional or different preventive measures will need to be implemented and, therefore, it is crucial that companies remain up-to-date with the advice of both the government and international organizations and carry out a comprehensive factual, legal, and risk analysis to determine the appropriate course of action.
The Prime Ministerial Decree of 11 March 2020 is provided at the following link: https://www.gazzettaufficiale.it/eli/id/2020/03/11/20A01605/sg.
The Protocol of 14 March 2020 is provided at the following link: https://files.rassegna.it/userdata/sites/rassegnait/attach/2020/03/protocollo-condiviso_13600.pdf.