The very recent evolution of the Covid-19 epidemic (commonly referred to as “Coronavirus”) has triggered the implementation of a series of measures designed to prevent its further spread, including provisions aimed at protecting employees by limiting their access to the workplace.
Given the current state of emergency, the obligations falling on any employer with regard to the protection of the working conditions, as provided for under article 2087 of the Italian Civil Code (which requires that the employer should adopt those “measures which, based on the specific characteristics of the job, experience and technical features, are necessary to protect the physical integrity and moral personality of the employees”) as well as Legislative Decree 81/2008 (in particular with regard to biological risk), should be interpreted in connection with the various regulatory provisions put in place in the last few hours by national and local legislatures.
As is well-known, the developments of last weekend have required urgent action on the part of institutional bodies, which resulted in the promulgation and coming into force, on 23 February 2020, of Law-Decree No. 6/2020 (the Law-Decree), the Decree of the Prime Minister implementing the Law-Decree (DPCM) as well as the order issued by the Ministry of Health in agreement with Lombardy Region in order to limit circulation to/from the areas where the highest number of cases has been identified (the so-called quarantine area).
Among the various provisions contained in the aforementioned Law-Decree, specifically in terms of employment law, it is envisaged that commercial and business activities must close in the areas referred to in the order (save for basic public services) and residents who live outside that territory, but work within the borders of the area under quarantine, should be suspended from work.
Furthermore the Council of Ministers provided, under article 3 of the DPCM, for the automatic application of smart working arrangements, even in the absence of individual agreements, to any employment relationship within the boundaries of the areas considered at risk and in national or local emergency situations, again in compliance with the principles of law No. 81 of 22 May 2017.
Leaving aside employees living in the areas under quarantine, any employer, in agreement with its Safety, Prevention and Protection Representative and Occupational Health doctor, and in line with its general duty of protection of the employees’ working conditions, should assess whether to adopt specific measures, at least with regard to employees with particular physical or health conditions, such as pregnant women or people suffering from serious chronic diseases (who are specifically at risk in the event of a viral contagion) and therefore implement measures such as a paid leave of absence or, where feasible, smart working arrangements.
In the absence of such voluntary measures, or in the absence of a certified illness, workers have no choice but to go to work as usual.
Just on this point, on 24 February, the Fondazione Studi Consulenti del Lavoro published an in-depth analysis specifying that sick leave cases are exclusively represented by employees who are actually ill or are absent from work, having been placed under quarantine as prescribed by medical authorities (i.e, employees who are being monitored because they show symptoms ascribable to the virus). On the contrary, any absence from work for fear of contracting the virus is likely to represent merely a case of unjustified absence (which, in extremis, could result in dismissal). Without specific orders by the authorities, the epidemic per se is in fact insufficient to justify any absence from work.
Lastly, we should distinguish one more case, that is, where the order issued by the public authority forbids employees, who are not sick, from leaving home (e.g, because the area is under quarantine): under those circumstances the inability to go to work is not the employee’s fault and therefore the Fondazione Studi Consulenti del Lavoro has held that the employee is entitled to remuneration, even if the service is not rendered. For that reason, trade unions have already requested that a regulatory provision be issued so as to grant supportive measures to businesses which are located in the areas covered by the quarantine order but do not fall within the scope of application of the Cassa Integrazione Guadagni Ordinaria pursuant to article 11, letter A) of Legislative Decree No. 148 of 14 September 2015.
In any event, across the nation, operators who are in direct contact with the public should implement the basic measures recommended by Circular No. 3190 dated 3 February 2020 issued by the Ministry of Health, such as installation of antibacterial gel dispensers (to ensure hands are constantly washed), effective cleaning of all areas, use of gloves or masks, etc. in the workplace.