Coronavirus emergency and corporate compliance related considerations
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CLIENT ALERT

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[1] as well as by the Protocol on the contrast and mitigation of Covid-19 in the workplace of 14 March 2020[2] 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:

  1. it is necessary to consult the company medical service (if any) in order to plan all specific actions concerning the general safety obligation, not only related strictly to health and hygiene (i.e., cleaning the premises, staff training, making hand sanitizer available) but also related to the operative management of those situations concerning potentially infected individuals in order to prevent the propagation of the disease (i.e. in this case it is provided to isolate the subject, equip him with a protective half mask and immediately call the medical assistance which will carry out the relevant further steps).
  2. there is a need for an innovative approach to personnel mobility in order to limit employee access to company premises as much as possible in compliance with the requirement that all departments that are not essential to production shall be closed; it is important to increase use of digital alternatives (in addition to encouraging what is known as “smart working”) that allow people to attend conferences and business meetings remotely so that travels can be limited to strictly necessary cases.
  3. it is crucial to adopt an efficient management of organizational aspects to ensure the safety of those employees which must continue working at company premises. This may require:
    • the limitation of personnel access to common areas, by banning or limiting the use of vending machines and coffee machines, restricting access to the company cafeteria or locker rooms and providing staggered shifts and different location for the entrance and the exit of the employees;
    • specific directives concerning individual precautionary measures, by providing instructions on the use of personal protective equipment (e.g. half masks, gloves, glasses, gowns etc.) and checking employees’ temperature at office entrances.
  4. it is appropriate to limit and regulate the access of third parties (e.g., suppliers, consultants, and customers) to company premises also by identifying alternative entry, transit and exit procedures as well as installing and requiring mandatory use of separate sanitary facilities, in order to reduce the possibility of any kind of contact with employees. In case of necessary access of external visitors (e.g. cleaning and maintenance companies), the same shall be subject to the rules applicable to personnel.
  5. it is recommended to reschedule external/internal company events, seminars, and conferences.

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.

[1]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.

[2]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.

Articolo inserito in: COVID-19, Compliance
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