Coronavirus – Step 2: Measures To Be Taken To Limit Corporate Liability

The Covid-19 health emergency and the consequent adoption of a series of emergency measures against the spread of the virus, have forced Italian companies with the renewed need to verify the adequacy of their controls and company policies on health and safety at work, in order to avoid incurring heavy responsibilities. The qualification by Article 42, paragraph 2, of the “Cura Italia” Decree (Legislative Decree No. 18/2020), of Covid-19 contagion in the workplace as a real accident at work, opens the way to a twofold profile of relevance, in terms of responsibility (criminal and administrative), of the conduct attributable to the employer for non-compliance with safety standards in the workplace.

It is well known that the protection of the employees’ psychophysical integrity, including from the biological risks they are exposed to in the performance of their work activity, constitutes a specific burden on the employer pursuant to Article 2087 of the Italian Civil Code.

In addition to this general rule, the special provisions contained in Legislative Decree No. 81/2008 (Consolidated Law on health and safety protection in the workplace) also play a fundamental role because, on the one hand, they had the merit of definitively enshrining the guarantee position held by the employer (i.e., the person who, in the operational and productive context, holds the ownership of decision-making and financial powers) as the person responsible for the safety of workers and for supervising the correct implementation of safety measures in the company’s premises; on the other hand, because, under certain conditions, the violation of the previsions at issue could have important repercussions on the company, exposing it to the penalties set forth in the Legislative Decree. no. 231/2001 (corporate criminal liability).

In fact, it must be pointed out that, should the prevention measures be not suitable to prevent the spread of the virus among the employees, the illness – or, in the most serious cases – the death of the infected workers, could integrate the crimes of culpable injury (art. 590 of the Italian Criminal Code) and manslaughter (art. 589 of the Italian Criminal Code), committed in violation of the rules for the protection of health and safety at work, with consequent liability of the employer where a causal link between the violation and the contagion can be assessed.

Beside to the employer’s responsibility for the aforementioned crimes, if such events could be attributed to an interest or an advantage for the company (such as, for example, the maintenance of the regular continuation of production in the absence of an adequate risk assessment and the adoption of the necessary precautions, or the saving of costs for the failure to purchase personal and/or collective protection equipment), the company could be called to answer for violation of the D. Legislative Decree no. 231/2001 which, in the catalogue of predicate offences (pursuant to Article 25 septies), also includes those of injury and negligent homicide in violation of the regulations for the protection of hygiene and safety at work, pursuant to Legislative Decree no. 81/2008.

Well, without considering the so-called “reputational” damage in which the company would incur, should such a circumstance be ascertained, the last mentioned rule provides for the application of harsh penalties, both pecuniary, possibly exceeding even one million euros, and disqualifications (from the prohibition to advertise goods or services, to the prohibition from exercising the activity), applicable, even as a precautionary measure, in the course of criminal proceedings, and which would bring the company further damages, both economic and operational.

What, then, are the precautionary measures which, in such an unprecedented and dramatic context, can have a positive impact on the responsibility of the employer and the entity, reducing the risk, and such as, at the same time, to enable the company to continue its activity, as far as possible and in safe conditions, also with a view to mitigating the economic damage caused by the Covid-19?

Without claiming to be exhaustive, the main aspects to be taken into account from the perspective of proper corporate compliance mainly concern:

1. the updating of the risk assessment document (VDR), which is the essential starting point for raising the company’s level of security, so as to make the prevention burden on the employer effective, and to adapt the security measures to the new requirements against the virus; as well as
2. the preparation and adoption of company protocols that allow to ensure that the company operations comply with the safety requirements against infection, and that will complement the precautionary measures already in place (e. those relating to occupational accident systems and those inherent to the organization and management model).

To this end, from an operational point of view, the DPCM of 11 March 2020 and the Protocol of 14 March signed between the Government and Confindustria play a supporting role.

Both measures, in fact, provide the companies with guidelines to be followed in order to combine the continuation of production activities with the guarantee of healthy and safe working conditions and methods.

For example, the company:

1. shall regulate the entry and exit of employees, as well as of third parties (suppliers, customers, users), in order to reduce contact occasions and ensure social distancing, with the adoption of the necessary controls, including those of a health nature;
2. shall carry out the cleaning and sanitation activities of the premises and proceed with the preparation of hygienic and sanitary precautions (e.g. make antibacterial products and PPE available to employees and third parties);must elaborate the procedures for the management of symptomatic persons in compliance with the regulations on privacy and the processing of their personal data;
3. should limit access to common areas, including company canteens, smoking areas and changing rooms, with the provision of continuous ventilation of the premises, reduced parking time within these areas and the maintenance of a safety distance of 1 meter between people occupying them;
4. must provide for measures to reorganize company activities, encouraging the use of digital alternatives (as well as favouring the so-called smart working for all those activities that can be carried out at home or remotely) that allow participation in conferences and remote work meetings – so that travel can be limited to strictly necessary cases -, ensure a rostering plan for employees dedicated to production with the aim of reducing contacts as much as possible and creating autonomous, distinct and recognizable groups;
5. will have to provide information regarding the specific risks of the company, the hygienic, health and self-regulatory prescriptions it has adopted, the importance of acting in compliance with the prevention and protection measures adopted and the disciplinary consequences of their non-compliance. This information must obviously be conveyed and publicized within the company context, so that it can be understood and known by anyone (including through the posting of information leaflets at the entrance and in the most visible places of the company premises; through the creation of internal mailing lists or company chat rooms, etc.).

The coronavirus alarm is already proving to be, and even more so will prove to be, an important test for our production system in which companies will have to demonstrate their ability to reorganize quickly and guarantee production continuity even in an objectively very difficult context like the one we are facing. However, the procedural and formal aspect will not be secondary and professional assistance in the preparation and revision of company protocols and organizational models, as well as in training activities, will be essential, both to fight against the spread of the virus and to limit the responsibility of the employer and the company itself.

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Contributing Advisors