COVID-19 News, Member News

EACCNY Labor Post-Pandemic Series | A Guide on Returning to Work Safely in the U.S. & Italy

With the help of our members, we are creating a Thought-Leadership series on the impact of COVID-19 on Labor & Employment from the perspective of both sides of the Atlantic. Today, we present Richard P. Romeo, Principal at Offit Kurman in New York, and Silvia Tozzoli, Partner at Legance Avvocati Associati in Milan, Italy, who will address “A Guide on Returning to Work Safely in the U.S. & Italy”. |


The American Perspective

This section discusses some of the challenges facing businesses in the United States that are re-opening or attempting to re-open in an environment where the effects of COVID-19 may still exist.

Compliance with federal, state, and local laws, rules, and regulations.

The United States has a federal government system, meaning that there are two (and sometimes three) levels of government with the authority to regulate businesses: federal, state, and in many cases, local governments. This is especially true in some of the larger cities, such as New York, which has enacted legislation and regulations that are often more stringent than similar federal or state laws and regulations governing the same topics. In addition, federal, state, and city administrative agencies are repeatedly charged with “interpreting” and enforcing the laws passed by the respective legislative bodies.  These “interpretations” often come in the form of regulations, which are a more formal pronouncement of the agencies’ interpretation of the law, and written “Guidance,” which are less formal interpretations that provide businesses with assistance and advice complying with the law. In interpreting statutes, courts often rely on the interpretations of these administrative bodies in making their decisions. As a general rule, employers are required to provide a “safe workplace,” which can sometimes be confusing and challenging. It is not always the case that the three levels of government, or their administrative bodies, are on the same page. Thus, it is incumbent on any business to be sure that it is aware of and complies with all of these jurisdictions and entities’ laws, rules, and regulations. Furthermore, although not required by a governmental authority, businesses may wish to follow recommendations that become a standard of “best practices,” a standard which is most often higher than the standard imposed or suggested by the applicable governmental authorities.

Re-opening policies-best practices:

Note the following suggested best practices designed to help make the workplace safe:

  • Require written, daily certification submitted by each employee prior to entry into the office. The certifications should ask:
    • Does the employee have any COVID-19 symptoms?
    • Has the employee traveled abroad or even out of state?
    • Has the employee been in proximity to someone infected with COVID-19?
  •  Require daily temperature testing of employees before they enter the office.
    • Records should be maintained of these temperature readings, with a clear understanding that these records are highly confidential, and access to those records should be strictly limited.
  •  Require wearing of masks/face coverings while in the office.
  • Ensuring Social Distancing:
    • Managing Office Attendance, use of workspace.
  •  Availability of Health and Safety Equipment:
    • Company to Provide Hand Sanitizers, Masks.
  •  Regular/Increased Office Cleaning/Sanitizing:
    • Individual Offices.
    • Common Areas.
      • Specific individuals should be assigned to perform regular cleaning and sanitizing of the common areas.
      • Records should be maintained regarding the cleaning and sanitizing of common areas.
  •   Are Visitors Permitted in the Office?
    • If so, what are the rules regarding visitors to the office?
  •  Is Business Travel Permitted?
    • If so, what are the rules regarding business travel?

Privacy concerns & issues:

  • The interplay between ensuring that the workplace is “safe” (i.e., ensuring compliance with law or best practices) versus maintaining individual privacy rights.
    • The maintenance of records relating to employee certification, testing.
      • Records to be segregated and kept confidential in the same fashion that employee medical records should be segregated and kept confidential, with limited access only on a need to know basis.

Potential legal issues facing employers:

  • Among the potential legal issues facing employers during the COVID-19 pandemic include:
    • Claims for alleged violations of the federal or state laws providing for paid leave and job protection.
      • Federal and state laws provide for leave and job protections for individual employees who are: infected with COVD-19; caring for loved ones infected with COVID-19; or caring for young children where the schools or daycare facilities are closed due to COVID-19.
    •  Claims for alleged failure to keep confidential individual employee medical records collected as part of the business’s COVID-19 reopening.
    • Claims by employees who become infected with COVID-19.
      • Courts will have to address issues such as these: defining the employer’s duty to make the workplace safe; measuring whether the employer has violated that duty; establishing how an employee can prove that he contracted COVID-19 at his workplace (as opposed to anywhere else); and whether state workers’ compensation laws prohibit these types of claims in the first place.

In short, the recent COVID-19 pandemic has created a whole host of potential legal issues facing employers in the U.S., with little guidance from the government. Employers should strive to meet the “best practices” and always try to act in good faith.

The Italian Perspective

With some information on other European Countries

This section summarizes, to the benefit of US and international companies, the main areas of attention that employers must consider when re-opening their business in Italy during the COVID-19 pandemic. The information contained herein is updated as at Oct. 25, 2020 and therefore considers also some of the measures which have been enacted to cope with the “second wave” of the pandemic.

A complex system: many sources and actors (not always synchronized and coordinated).

Italy is not a federal system like the United States or other European countries such as Germany, but it is nevertheless quite complicated to get a clear picture of the rules applicable to Italian businesses in this difficult period.

The main provisions to identify rights and duties at work during the pandemic were established by a set of Presidential Decrees and Law Decrees enacted by the Government. A number of somehow different, but still significant, rules were then adopted by the single Regions, often in contrast with those enacted centrally. Also certain independent bodies, especially the Data Protection Authority and the Social Security administration, introduced guidelines and interpretations, thus increasing the complexity of the system.

As in the US, then, it is important to check first in what geographical area a company is located, in order to understand what limits and restrictions apply locally.

An aspect peculiar to the Italian system (and common to France) is the presence of quite strong trade unions, which signed, together with the employers’ associations, specific protocols for the management of H&S at the workplace. Such protocols were annexed to the Presidential Decrees, and so they have become mandatory.

Mandatory measures for a safe workplace

Here below is an outline of the main mandatory provisions to be implemented at the workplace in Italy:

  • Require employees to wear masks in common areas and when it is not possible to keep social distancing. Masks must be provided by the employer.
  • Organize the workplace to ensure social distancing, e.g. differentiate work schedules and access to public places such as canteens and locker rooms, identify separate paths for entrance/exit. Note that certain regions have adopted general curfews, allowing movements of people for justified reasons only after 10/11 p.m. Employers must therefore provide a justification/statement for employees who need to work (and therefore move) after those hours.
  • Provide daily cleaning and periodical sanitization of the workplace. Hand sanitizers and adequate facilities to wash hands must also be provided.
  • The H&S protocol suggests to take temperature of employees who access a site and require those with temperature >37.5° or Covid-19 symptoms to return at home. The employer cannot impose any other test, unless the company’s doctor provides so.  No recording of the employee’s conditions is allowed and separate rooms for temperature tests are recommended.
  • Make use of home work to the maximum extent possible. Until December 31, 2020, home work can be implemented in the absence of individual agreements and under an easier and less bureaucratic scheme. “At risk” employees must be allowed to work from home if their activity so allows.
  • Limit business travels and meetings to those strictly necessary.

Most of the above rules are common to other major European jurisdictions. Generally, Italy and France enacted mandatory rules or protocols, while the UK relied more on guidelines.

Privacy concerns & issues:

Data Protection rules are very similar in all countries of the European Union under the umbrella of the General Data Protection Regulation – GDPR. In this framework, the following issues often arise and make it more difficult to strike a balance between safety and personal privacy:

  • Recording of employees’ testing or symptoms is not allowed or must be limited to what strictly necessary.
  • Surveys on personal contacts and travels cannot be administered by the employer, thus making it more difficult to screen employees when entering the workplace
  • Contact-tracing apps cannot be imposed by he employer and also State-sponsored apps can be downloaded on a voluntary basis only.

Potential legal issues facing employers:

  • In Italy, the COVID-19 infection is considered an occupational illness and failure to take appropriate H&S measures can also lead to the employer’s criminal liability for culpable manslaughter or serious negligent injury. Such charges could also trigger corporate criminal liability, in case the failure to adopt preventive measure is due to cost savings polities or profitability purposes. General rules of criminal law require however evidence of cause-effect link between the onset of the disease and the presence in the workplace.
  • More in general, European employers face the risk of claims for damages in case employees get infected at the workplace and the H&S measures are not effectively applied.
  • In implementing H&S measures, however, data protection must be fully ensured, as sanctions set by the GDPR can be onerous.

It is crucial that employers ensure the effective enforcement of H&S measures (also through disciplinary sanctions up to dismissal for serious breach) but within the boundaries of data protection rules to avoid even more burdensome consequences.

Authors:

  • Richard P. Romeo, Principal at Offit Kurman in New York
  • rromeo@offitkurman.com | +1 347 589 8547
  • Silvia Tozzoli, Partner at Legance Avvocati Associati in Milan, Italy
  • stozzoli@legance.it | +39 02 89 63 071

Stay tuned for more on this series! We hope you enjoy these Thought-Leadership pieces written by our members.