Emergency decrees has been issued to tackle the spread of Coronavirus in “red zones” and other risk areas: “smart working”, allowing employees to work remotely, may be implemented even absent previous agreement between the parties (which is, generally, instead a prerequisite). In compliance with the general obligation to preserve employees’ health, employers must identify alternative measures to minimize risk of infection and preserve the earning capacity of employees not working “smartly”.
Italian government approved over the week-end urgent measures to tackle the spread of COVID-19, the so-called Coronavirus.
Such measures are set forth in Law-Decree no. 6 of February 23, 2020 and in the implementing measures issued by a Decree of the President of the Council of Ministers on the same date (Implementation Decree), and are effective for the next 14 days.
IN “RED ZONES”
Under Law-Decree no. 6 of February 23, 2020, competent authorities are required to take all appropriate security measures, proportional to the epidemiological situation, in municipalities or areas where at least one person is positive to Coronavirus and the source of infection is unknown or has not been traced back to an infected person, coming from already identified red zones.
The Implementation Decree suspends (a) all work for companies in the red zones of the Lombardia and Veneto regions, excluding essential and public utility services providers – unless working remotely is possible – as well as (b) all work activities of the inhabitants of red zones, even if carried out in a non-red zone area.
IN ALL THE RISK AREAS
The Implementation Decree allows employers/employees to adopt “smart working” (work other than from the employee’s workplace) without restrictions.
This is an exception to the general rule: smart working is generally allowed if provided for specifically in the employer/employee agreement, also setting forth the necessary details: organization of work; IT aspects; any additional terms of the employment relationship concerning the exercise of the management powers, as well as the controlling and disciplinary powers, and the technical and organizational measures to ensure the “log-off” of the employees from the IT devices.
Due to the risk of Coronavirus’ infection, an ad-hoc smart working agreement is now (for 14 days) not required in the risk areas, and the employers simply need to notify the implementation of smart working through an online procedure.
READY FOR SMARTWORKING?
Not all companies can ensure the proper performance of working activities not in the workplace.
Indeed, smart working requires employers to provide technical and organizational measures necessary to carry out the working activities by smart workers and to update the company documentation accordingly, i.e. health and safety documents to ensure “psychophysical integrity” of the smart employees and the disciplinary code to include sanctions for the infringement of the smart working arrangements.
In addition, smart working could be not doable in practice due to the absence or the inadequacy of the IT assets or for the specific nature of the working activities, that cannot be carried out outside the premises.
WHAT TO DO IF SMARTWORKING IS NOT A FEASIBLE OPTION
If smart working is not a workable option, red-zone inhabitants as well as infected persons are authorized not to work and receive the remuneration, funded by the public lay-off system (Cassa Integrazione Guadagni Ordinaria).
Workers subject to mandatory quarantine are automatically on sick leave – as those in voluntary quarantine, who have been exposed to the virus and wait the issuance of the quarantine orders.
The absence from work of employees who are not currently at risk should be instead considered unjustified, if only caused by the fear of getting sick.
In any case, the employers are required to identify and implement new security measures, e.g. information and prevention procedures, in compliance with their general obligation to ensure psychophysical integrity of their employees and with the guidelines issued by the Ministry of Health on COVID-2019.
In addition, as optional measures, employers should assess the opportunity to provide extra-permits or paid holidays for employees that cannot work under smart working arrangements – especially in case some of their colleagues are smart workers, thus ensuring the equal treatment of all the workforce.
Finally, against this background, employers need to update the Health and Safety risk assessment document (“Documento Valutazione Rischi” – DVR) taking into account the new “biological risk” and the measures implemented to protect employees. This measure is advisable also from a corporate compliance point of view: indeed Italian Legislative Decree 231/01 (on corporate criminal liability for crimes committed company personnel) applies also to workplace health and safety criminal violations.
Employers are required to take care of the psychophysical integrity of their employees, reducing the risk of infections at work by identifying all possible risks for the health of the employees, keeping the DVR updated and implementing appropriate protection measures.
If feasible, smart working could offer a good solution to preserve productivity as well as minimize risk to employees’ health. If not feasible, employers should identify alternative measures to minimize risk of infection and preserve earning capacity of the non-smart workers.
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Compliments of Portolano Cavallo, a Member of the EACCNY