Criminal liability for the spread of Covid-19 in the workplace

With the spread of Covid-19, a series of measures was adopted to counter the spread of the virus in the workplace as well. The Ministry of Health, by circular of 3 February no. 3190, gave the following guidance to all those who, for work reasons, are in contact with the public: "wash your hands frequently; pay attention to the hygiene of surfaces; avoid close and prolonged contact with people who have flu symptoms and adopt every further preventive measure laid down by the employer". Various decrees of the President of the Council were then issued which suspended all commercial and industrial activities, with the exception of those identified in Annex 1 to the D.P.C.M. of 10 April 2020, which authorised the sale of food and essential goods, newsstands, pharmacies and parapharmacies, catering with home delivery, banking, financial and insurance services, and activity in the agricultural sector, including the supply chains that provide it with goods and services. For all the work activities listed in that annex, a series of precautions was imposed in order to protect the category of workers obliged to continue their activity. For that reason a Protocol was signed, on 14 March 2020, by the Government and the President of Confindustria, directed at combining the continuation of productive activity with the guarantee of healthy and safe working environments and working methods in order to address the risk of contagion from Covid-19. That protocol provides, where possible, for the reduction or suspension of work (by recourse to social shock absorbers, paid leave and so-called smart working), while, where that cannot be implemented, the continuation of work is provided for, on condition that adequate levels of protection for workers are ensured.

What happens if we find ourselves in the situation in which an activity is carried on in conditions that do not meet the adequate precautionary levels laid down by the various sources of law in order to avert contagion from Covid-19?

It should be stressed at the outset that there is no doubt that contagion from Covid-19 in the workplace is to be treated as a true accident at work. Confirmation of this is found in Article 42, paragraph 2, of Decree-Law no. 18 of 17 March 2020 (the so-called Cura Italia Decree), under which contagion from coronavirus must be treated by public and private employers and by INAIL as an accident. INAIL itself confirms this in its circular of 3 April 2020, no. 13. For the criminal case law, moreover, "as regards personal injury, 'illness' means any anatomical or functional alteration of the organism, even if localised, of slight extent and not affecting general organic conditions, so that the state of illness lasts for as long as the said process of alteration is under way. Quite correctly, therefore, the territorial court held that the establishment in the organism of a degenerative mechanism which, if not addressed promptly and constantly by pharmacological therapy, leads to further alterations and to the full-blown phase of AIDS constitutes an illness" (ex plurimis, Cass. pen., Fifth Division, no. 43763 of 29 September 2010). It inevitably follows that, in cases of contraction of Covid-19 by employees or third parties in the workplace, liability may arise both of the employer (for the offences of negligent personal injury and manslaughter, committed in breach of the rules on the protection of health and safety at work) and of the company for breach of Legislative Decree no. 231 of 2001. Those offences may, however, be concretely charged where three conditions are met: 1. that the contagion occurred in the working environment; 2. that there was a breach of the emergency rules and/or of Legislative Decree no. 81 of 2008; 3. that there is a causal link between the harmful event (injury or death) and the breach of those rules.