COVID-19: Guidance for Employers in Italy

By Daphne Diorio Borri, Cristiano Pambianchi, Giulia Brambilla

05-2020

The outbreak of Novel Coronavirus (COVID-19) has resulted in a worldwide pandemic. In Italy, where the outbreak of COVID-19 has been extremely severe, the Government has implemented a number of emergency measures, including the closure of schools, universities, gyms, museums and clubs, in addition to more severe restrictions on business, commercial and leisure activities in the Italian territory.

Understandably, this may be creating great concern and unrest for you and amongst your workforce.
Below we answer some key questions to clarify employers' legal obligations and support you in protecting your business and people.

What measures have been enacted in response to COVID-19?

The decree of the President of the Council for Ministers enacted on 9 March 2020 (amending the decree issued on 8 March 2020) identified the entire Italian territory as quarantined "red" areas. Between the first Presidential decree and the time of writing (20 May 2020), many
decrees have been enacted, further restricting citizens' freedom of movement and commercial activities. An overview of the Decrees is provided below.

The latest decree was enacted on 16 May 2020 and provides for the lifting of the lockdown, subject to compliance with certain rules. In particular:

(i) Citizens can freely move across their Region. However, travelling across Regions remains prohibited until 3 June 2020 unless such travelling is (i) a matter of urgency or (ii) justified by a serious and documented business or health necessity

(ii) All restaurants, café and shops can re-open from 20 May 2020, providing that they are able to ensure a security distance of at least 1 meter between customers.

(iii) Gyms can re-open from 25 May 2020, and cinemas and theatres from 15 June 2020.

Anyone who is infected by COVID-19 must stay isolated at home in the so-called "fiduciary quarantine". Violating such quarantine is deemed a crime under Italian Criminal law.

The Protocol on health and safety in the workplace enacted on 14 March 2020 (the "H&S Protocol") was slightly amended by the Cabinet and the Trade Unions on 24 April 2020. Among other things, the new version of the protocol provides that companies in breach of health and safety regulations may be subject to an immediate suspension of their commercial licence. 

Further, on 17 March 2020, the so-called "Whatever it takes" Decree (Decruto Cura) entered into force. The Decree contains several measures to address the negative impacts of COVID-19 on the Italian economy and labour, and was converted into law (with some amendments) on 24 April 2020. Among other measures, the Decree provides for:

1) special paid and unpaid leaves for parent-employees and employees who are assisting disabled family members; 

2) financial support for companies purchasing protective devices and equipment; 

3) a bonus of €100 for employees who have been working at company premises during lockdown subject to certain requirements;

4) the possibility to apply for wage supplementary funds based on "reduction of work due to COVID-19" (see below for further details); and

5) a ban on dismissal for business reasons, effective until 17 May 2020 (later extended - see below for further details).

On 9 April 2020, the "Liquidity Decree" (Decreto Liquidita)was enacted. Amongst others, the Decree provides for (i) tax and social security reliefs, (ii) the possibility for individuals and companies to apply for low interest rate loans, totally or partially guaranteed by the State and (iii) the suspension of litigation proceedings until 11 May 2020. 
 
Finally, on 13 May 2020, the so-called "Re-Launch Decree" (Decreto Rilancio) was enacted. The Decree consists of more than 200 articles, but an overview of the main employment related matters is provided below.
 

1) Extension of the ban of individual and collective dismissals

The ban on individual and collective dismissals has been extended until 17 August 2020. Dismissals for just cause, failure of the probationary period and natural expiry of the fixed-term contracts remain out of scope.¶

Companies which served dismissals for redundancy from 23 February to 17 March 2020 are entitled to withdraw the dismissal(s) and apply for the Wage Supplementary Fund (Cassa Integrazione) from the date of dismissal. In such cases, the employment relationship will be deemed as not having been terminated.¶

2) Wage Supplementary Funds (Cassa Integrazione

Subject to certain requirements, companies can apply for Wage Supplementary Funds for a maximum duration of 18 weeks (increased from 9 weeks), consisting of (i) 14 weeks for the suspension of activities between 23 February and 31 August 2020, and (ii) four weeks running from the period of 1 September to 31 October 2020. ¶

3) Smart working¶

Until the end of the state of emergency (31 July 2020), all employees with children aged 14 years old and under will be entitled to optimise smart working arrangements (meaning they can work from anywhere), even in the absence of individual agreements with the employer.¶

4) Paid permits¶

Employees with children aged 12 years old and under are entitled to 30 days of paid permits (paid at 50%) until 31 July 2020. Employees assisting disabled family members are entitled to a further 12 days of paid permits (at 100%) in May and June 2020. ¶

5) Fixed-term employment contracts¶

Fixed-term contracts can be extended or renewed up to 30 August 2020 without the need for technical-organizational or replacement reasons.

What are employers' obligations in respect of COVID-19?

According to the President of the Council of Ministers' decree of 8 March 2020:

  1. Smart working agreements are recommended in all Italian Regions and should be the normal mode for performance of work activities. Such arrangements can easily be activated without the need for any formalities. An example form can be downloaded from the Ministry of Labor website.
  2. The body temperature of employees should be measured before they enter the company premises (this is a legal obligation for employers in the Lombardy Region). Employees who have a body temperature higher than 37,5 C° are not allowed access to corporate premises. There are some restrictions on treatment of this data, which we set out below.

  3. All companies (public and private) are strongly recommended to cancel business trips across all Italian Regions. Employers must opt for voice calls or video conferences. 

  4. Any scheduled fairs, conferences, events or conventions of whatever nature must be delayed as well as any meetings due to be attended by physicians or people in charge of public services.

  5. Employers must restrict access to common areas such as canteens, relaxation areas, coffee rooms and  smoking areas. The number of people who can have access to such areas must be limited and a "security distance" of at least 1 meter must be ensured among people standing in the same room.

  6. Employers must limit access of third parties (e.g. suppliers, providers, etc.) to corporate offices/premises to only those that are strictly necessary. Employers must provide a notice to employees and visitors at the entrance of corporate offices, informing them that anyone who (i) has a fever higher than 37.5 C°, (ii) has flu symptoms, or (iii) has come in contact with people infected by COVID-19, must not enter the office;

  7. Employers must notify the Health Authority of any data or information they have become aware of in relation to persons possibly infected, to allow the Health Authority to investigate potential spread of the virus. If an employee was infected, the offices must be sanitized.

In addition to the above, all employers have health and safety obligations to keep employees informed of health risks that may arise in carrying out their duties and to ensure that working practices do not create undue risks to employees.

As such, employers should carry out risk assessments on an ongoing basis and consider any factors that may make employees particularly susceptible to infection. Employers should also consider circulating up-to-date information on good hygiene practices and provide any necessary equipment to facilitate this, such as hand sanitisers. For example, we recommend issuing a reminder on action employees can take to help stop viruses like coronavirus spreading. Such advice may include:

Cover your mouth and nose with a tissue or your sleeve (not your hands) when you cough or sneeze

Put used tissues in the bin immediately

Wash your hands with soap and water often – use hand sanitiser gel if soap and water are not available

Try to avoid close contact with people who are unwell

We further recommend notifying employees where they can access more information if they are concerned. 

Finally, from a health and safety standpoint, employers should assess the existence of a specific biological risk related to COVID-19 (in coordination with the company physician and the Head of the Prevention and Protection Service (RSPP)). If such a risk exists, a Risk Assessment Document (DVR) must be updated and a specific prevention and protection plan must be implemented with the aim of eliminating (or at least reducing) the occurrence of dangerous situations, and possibly providing for individual protection measures. 

It should also be noted that, pursuant to Art. 26 paragraph 3-bis of Legislative Decree No. 81/2008, in the case of service contracts involving contact between the provider and the principal's employees, a DUVRI (Interferential Risk Assessment Document) must be drafted.  This applies even if the services are of an intellectual nature only, if there are risks arising from the presence of biological agents (such as infection from COVID-19).

Can employers request or require information from an employee about potential or actual exposure to the virus?

The question of whether an employee can be asked to sign a declaration about where they have been, their exposure to the virus, or be required to provide information to an employer in order for the employer to provide confirmation to a customer sits firmly in the crossover between data privacy and employment.   

Italian employers are under a duty to provide a safe and secure working environment under Legislative Decree No. 81/2008.  The collection of such data may be necessary to protect the health, safety and welfare of other employees.  Italian employees are subject to a more general obligation to comply with reasonable instructions or requests issued by their employer, and an employer may take further action (including disciplinary action) where an employee fails to do so. In principle, employers may therefore require an employee to confirm and specify where he/she has spent the past 15 days in order to assess the level of risk to the workforce.  Employers may not, however, ask employees to confirm that they are not infected or request a medical certificate to the same effect.

In response to a request for clarification concerning the possibility of collecting data concerning employees' flu symptoms or recent travels, the Italian Data Protection Authority (DPA) issued a message on 2 March 2020 stating that employers "must refrain from collecting, a priori and in a systematic and generalized way, also through specific requests to employees or unauthorized investigations, information on the presence of any flu symptoms of the employee and his closest contacts or in any case falling within the non-working sphere". The Italian DPA clarified that such investigations are reserved for the competent authorities.

However, according to the Protocol on health and safety enacted on 14 March 2020, companies must inform employees and third parties entering the corporate premises of the rules provided by the Public Authorities by delivering and/or posting a specific COVID-19 notice at the entrance of the premises. In particular, this notice must contain the following information:

  • The obligation to stay at home in case of fever (higher than 37.5 C°) or flu symptoms, and the obligation to call the physician and the competent Health Authority;

  • The obligation to refrain from entering the premises or continuing to work if, while working, the employee or the visitor has fever of flu symptoms and is aware they had contact with persons at risk. In such cases, the employee or the visitor must inform the employer.

  • The commitment to comply with all rules set forth by the competent Authorities and the employer while entering the corporate premises (in particular, keeping a security distance of 1 meter, washing regularly hands, etc.).

  • The obligation to promptly inform the employee in the case of fever or flu symptoms while working, whilst remaining at a distance of 1 meter from the employer and colleagues.

Employees can also be subject to a temperature check before entering the premises (as noted above, this is a legal obligation for employers in the Lombardy Region). In view of the last note enacted by the Italian DPA mentioned above, body temperature can be measured subject to the following restrictions:

  • The result of the measurement must not be recorded;

  • The employee’s name should not be recorded, unless he/she must be identified because the access to the premises has been denied due to fever;

  • A privacy notice is submitted to the employee clarifying: (i) the purposes of the data processing (i.e. limiting COVID-19 contagion); (ii) the duration of the storage of data (i.e. the state of emergency which is currently six months);and (iii) the persons in charge of processing the data. 

In addition, if an employee is denied access to premises, their right to privacy and dignity must be ensured.

If an employee’s temperature is higher than 37.5 C°, access to the workplace must be denied. A person with flu symptoms must promptly contact his/her physician and stick to the relevant prescriptions. 

Employers may also face situations where a customer/client requires travel or health information relating to their employees when visiting the customer/client's site.

In these circumstances, the customer/client may collect such information autonomously (i.e. without involving the employer) from the employees visiting his site in compliance with its GDPR obligations. Customers/clients are therefore required to provide a privacy policy providing information on the features of processing and the lawful basis for such processing (e.g. consent, or other basis under section 9 GDPR). This information should not be communicated between the employer and the customer/client, as such communications would not be considered proportionate.

Further to the above, the position regarding European data privacy rules and how they impact information relating to COVID-19 is developing.  A number of EU governments have issued further guidance (including Italy, as set out above) and more still are considering whether emergency legislation may be required, particularly if the situation escalates.  The position will need to be kept under review as the situation evolves and further guidance becomes available.

What should employers do if an employee is absent or infected?

Infected employees

If an employee is infected with COVID-19, the employer must contact the competent Health Authority (Authority). Each Italian Region has a dedicated hotline. There is currently no specific requirement for employees to inform staff representatives, the whole workforce or customers. However, it is recommended that the premises be cleaned and sanitized according to the Authorities instructions. It is also recommended that employers inform clients or third parties who have been in contact with infected employees. The Authorities will provide more information on this where relevant.

Infected employees will be indemnified under regular sick leave provisions (which will be paid by the employer but offset by the National Social Security Agency).

Potentially Infected employees

Employers should immediately inform the public authorities about the identity of possible exposed or infected employees. The Authorities will then take relevant measures.

Quarantined employees

If an employee is in quarantine without symptoms (for example, if an employee lives in the 'red zone') they must be considered to be on sick leave. 

Where can employers and employees access local and national advice?

Last reviewed 20 May 2020