After almost two months of lockdown, Italy is going to (partially) reopen its economy and establish a “new normal” for the everyday life of firms and citizens. On April 24, employers and employee representatives (firms and trade unions) agreed on an updated version of the health and safety protocol (the “H&S Protocol”) issued on March 14 to prevent the spread of COVID-19 in the workplace by regulating access to company premises and work-shift schedules, as well as sanitization of work environments and cleaning of offices and IT devices.
The measures listed in the H&S Protocol of March 14 and in the updated version are binding for companies whose activities are not suspended (see Art. 2 (10) Prime Minister Decree April 10, 2020 and Art. 2 (6) Prime Minister Decree April 26, 2020).
The updated H&S Protocol introduces several new significant measures that companies need to take into consideration when tackling the challenge of reopening; it also indicates that if an adequate level of protection is not provided, a company’s business may be suspended until safe conditions are restored.
New measures included in the H&S Protocol are as follows:
Comparable measures are also listed in the technical document that INAIL published on April 23, which clarified the requirement that those actions be included in the risk assessment document (“DVR“).
DATA PROTECTION IMPLICATIONS
The implementation of these measures — many of which involve the processing of personal data — triggers the adoption of certain safeguards in order to make them compliant with applicable data protection laws.
Companies may require personnel to have their temperatures taken before they access company premises and can forbid those whose temperatures are higher than 37.5°C (or who refuse to have their temperatures taken) from entering. In doing so, however, they shall:
If a company decides to submit questionnaires to employees asking for information about their contacts or movements in the previous 14 days, it shall collect only information that is strictly necessary to take preventive measures (for example, avoid collecting detailed information or the names of those who have been in contact with the employee), in accordance with the minimization principle under data protection laws.
The H&S Protocol also clarifies that the same rules apply to visitors accessing company premises.
Based on the above, it is clear that — when adopting the measures aimed at containing the spread of the virus — an integrated approach that takes into account labor law requirements, compliance with health and safety requirement, and data protection law provisions should be employed when planning to reopen business activities while effectively limiting the risk of infection.
CORPORATE CRIMINAL LIABILITY IMPLICATIONS
As outlined in our previous alert, failing to protect employees from workplace transmission of COVID-19 could translate into the risk of severe injury to or death of employees, which, in turn, may trigger corporate criminal liability pursuant to Legislative Decree No. 231/2001.
The risk of facing corporate criminal liability provided by Legislative Decree No. 231/2001 amid the COVID-19 emergency exists if:
Relevant to this angle of analysis is that Art. 42 of Law Decree No. 18 dated March 17, 2020 stipulates that getting a COVID-19 infection “during working activity” is a work accident pursuant to Legislative Decree No. 81/08, thus confirming the potential relevance of contagion in the workplace in terms of corporate criminal liability deriving from the breach of H&S regulations.
Therefore, companies must take special care in handling COVID-19 during the reopening phase. From a compliance perspective, it will be critical not only to adopt and properly document all the required safety measures, but also to oversee them and ensure that they are successfully implemented, which entails specific audits of adequacy and effectiveness, training sessions, sanctions for noncompliant behaviors, and periodic reviews and updates of the safeguarding actions taken in light of the current fast-changing situation.