In the business world, the Covid-19 emergency has taken on epochal proportions.
Upon restarting work activities, the pandemic and the consequent biological risk of contagion impose precise obligations on all employers: to adopt specific adaptation measures to protect workers’ health, suitable to counter the spread of the virus.
An omission of protocols and protection measures would in fact expose the employer and the company itself to criminal liability, with pecuniary sanctions and interdiction. In parallel with compensation for damages.
Everyone knows that in Italy, too, companies are now liable with their own responsibility for crimes committed for the benefit or in the interest of the company, in accordance with Legislative Decree no. 231/2001.
Among the predicate offences that give rise to the Entity’s liability, pursuant to Article 25 septies of Legislative Decree no. 231/2001, are included the crimes of culpable personal injury, (Article 509 of the Italian Criminal Code), and negligent murder, (Article 589 of the Italian Criminal Code), resulting from the violation of the regulations protecting health and safety at work.
This premise must be coordinated with art. 42 of the so called Cura Italia Decree, D.L n. 18 of 17.03.2020, according to which the Covid-19 coronavirus infection contracted during work constitutes an occupational injury within the meaning of Legislative Decree 81/2008. The figure was confirmed by INAIL note prot. 3675 of 17 March 2020, which specifies the mechanism of presumption that the disease was contracted during or on the occasion of work.
The result is that the Covid-19 contagion will be treated as an occupational accident.
The consequences can be summarised in these terms:
– for the employer the possibility of a charge for the crime of culpable injury (Article 590 of the Italian Criminal Code) or, even worse, of culpable murder (Article 589 of the Italian Criminal Code);
– for the company the direct involvement in the criminal proceedings with the charge as per Art. 25 septies of legislative decree 231/2001 “culpable homicide or serious or very serious injuries committed in violation of regulations on the protection of health and safety in the workplace“, with monetary sanctions of up to € 1,549,000 and disqualification sanctions that extend to a ban on carrying out the activity.
The scenario described is obviously linked to the possibility that the company has NOT taken the necessary precautions to protect workers’ health.
In this context, in view of the restart of work activities, it is essential to comply with the Protocols for the protection of workers provided for by the Government, in collaboration with trade associations (Confindustria, Confartigianato, etc.) and the most representative trade unions: “Shared protocol for the regulation of measures to combat and contain the spread of the Covid-19 virus in the workplace“, dated 14 March 2020.
The above mentioned Protocol provides and regulates a series of guidelines on the subject of:
1. information for anyone entering the company;
2. procedures for entering the company, both for personnel and external suppliers;
3. cleaning and sanitation activities in the company;
4. personal hygiene precautions;
5. personal protective equipment (PPE);
6. management of common areas;
7. company organization, (rostering, transfers and smart working, remodulation of production levels);
8. employee entry and exit management;
9. internal transfers, meetings, internal events and training;
10. management of a symptomatic person in the company;
11. health/health surveillance/responsible physician/RLS;
12. updating of the regulatory protocol.
The need and importance of adopting measures to protect the psychophysical integrity of employees, as well as for the protection of the primary good of health, is twofold.
First of all, it originates from specific regulatory obligations, of a civil law nature, such as Article 2087 of the Italian Civil Code or the provisions of the Consolidated Law on the protection of health and safety in the workplace, Legislative Decree 81/2008.
Secondly, as already mentioned at the beginning, the possible omission of prevention measures related to the so-called biological risk of contagion from Covid-19 coronavirus exposes the employer to precise criminal responsibilities, to which is added the possible profile of administrative responsibility of the company pursuant to Legislative Decree 231/2001.
As is well known, in fact, as a result of the entry into force of Legislative Decree 231/2001, Entities (companies, corporations or partnerships, associations, individual entrepreneurs) are liable “on their own” if a specific offence is committed, (so-called predicate offence), to the benefit or in the interest of the entity.
However, the responsibility of the company is not automatic.
The Entity is not subject to liability if the company has adopted Organisation and Management Models in line with the dictates of the regulations, suitable for preventing the risk of the crime that has occurred; that the task of supervising the functioning and observance of the Models is entrusted to a Supervisory Body with powers of initiative and control; that the persons have committed the crime by fraudulently evading the Model; that there is no omitted or insufficient supervision by the Supervisory Body.
Last, the offence must be committed for the benefit or in the interest of the Entity.
The discipline is very topical at a time when production activities are resumed and all companies will be called upon to adapt to the Covid-19 biological risk protection models.
On the subject of the “criminal” liability of Entities, in fact, with reference to the case of the crime of personal injury aggravated by the accident prevention regulations, (think of the case of a serious contagion from Covid-19), “there is the interest of the Entity in the event that the failure to set up safety systems results in cost savings, while there is the requirement of the advantage if the failure to comply with the precautionary regulations allows an increase in productivity”, (Supreme Court of Cassation, Criminal Section IV, no. 24697 of 20.04.2016, Mazzotti and others, in Rev. 268066-01).
It should be considered that, for example, fall within the concept of cost savings, savings on consulting costs, on instrumental adjustment interventions, on training and information activities of personnel, (Court of Cassation, Criminal Section IV, no. 18073 of 19.02.2015).
On the basis of these regulatory and jurisprudential assumptions, it appears imperative for all commercial and productive activities to adopt the Protocols and measures to combat and contain the spread of the Covid-19 virus.
As for companies that have already adopted the Organisational Models pursuant to Legislative Decree 231/2001, it will be necessary to adapt the company protocols, update the DVR, where possible appoint a Committee for the application and verification of the rules of the regulatory protocol with the participation of the company trade union representatives and the RLS, compel the Supervisory Body to monitor the adequacy and effectiveness of the measures taken.