COVID-19 EMERGENCY: safety at work in the time of the health emergency

In the face of the COVID-19 emergency, employers have found themselves forced to intervene on various fronts, among which one of the main ones is certainly that of respecting all the measures to protect health and safety in the workplace, which each employer is required to adopt based on the principles and legal obligations in force.

It is therefore appropriate that employers, without prejudice to compliance with the mandatory regulations established by the Authorities, update the Risk Assessment Document (DVR) by profiling the risk of contagion from COVID-19 and listing the risk protection and mitigation measures.

What are the consequences for the employer who does not adopt the intervention plans and does not update the DVR?

The consequences for employers who do not adopt intervention plans or who do not update the DVR could be different.

1. From a first perspective, there could be a contractual liability for failure to fulfill the general obligation referred to in the art. 2087 c.c. Any infected workers could in fact argue that the employer is in breach of the aforementioned obligation for not having adopted the measures "necessary to protect the psycho-physical integrity of the worker in carrying out the non-scheduled service" or for not having "exercised control over the consequent execution in compliance with the legislatively required safety paradigms";

In the event that the employer had not adopted any intervention plan or updated the DVR with respect to the risk of contagion from COVID-19, the proof burdening the employer "to have done everything possible to avoid the damage, or to have adopted all the necessary precautions to prevent the damage itself from occurring" would be complex.

2. From a further point of view, employers who do not adopt these intervention plans or update the DVR could face administrative sanctions (art. 55, letter h) Legislative Decree 81/2008), for example for violation of the obligation under art. 18, letter. i) of Legislative Decree 81/2008 ("inform as soon as possible workers exposed to the risk of serious and immediate danger about the risk itself and the provisions taken or to be taken regarding protection").
3. Finally, in the event that the contagion has spread in the workplace with serious health consequences for the affected workers, there could be a criminal liability of the employer - or the person who holds this qualification pursuant to Legislative Decree no. 81/2008 - for the crimes defined by articles 589 and 590 of the Criminal Code (serious or very serious negligent personal injury committed with violation of the rules on the protection of health and safety at work, up to the possibility of manslaughter in the event of the worker's death) with possible implications also in terms of the administrative liability of the entities pursuant to Legislative Decree 231/2001 where applicable.

Also for these reasons, the updating of the Risk Assessment Document, alternatively, the adoption of an intervention and strengthening plan for the measures ordinarily adopted in the company is extremely necessary.