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 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 create great concern and unrest for you and amongst your workforce.  Below we answer some key questions in order to clarify employers' legal obligations and also to 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 and imposed a severe lockdown (restricting both the citizens' freedom of movement and commercial activities). On 16 May 2020, the lockdown was partially lifted (a few activities are still closed, e.g.. clubs and dance halls), subject to compliance with certain stringent rules on health and safety set forth by the Protocol on health and safety in the workplace enacted on 14 March 2020 (the "H&S Protocol"). Among other things, the H&S Protocol provides for the obligation to stay isolated at home in the so-called "fiduciary quarantine" for anyone who is infected by Covid-19. Violating such quarantine is deemed a crime under Italian Criminal law. Companies must comply with certain rules summarized below and, in case of breach, they can be subject to the immediate suspension of their commercial licence.

Notwithstanding the lifting of the lockdown, the state of emergency was extended until 15 October 2020. This means that – until that date – the Italian Cabinet and the Civil Protection Department are entrusted with special legislative powers (potentially, a new lockdown could be imposed). In addition, please consider that the use of face masks (inside as well as outside) is mandatory from 6pm until 6am. Fines are applicable in the event of non-compliance.

Between the first Presidential decree and the time of writing (1 September 2020), many decrees have been enacted. 

The very last Decree was enacted on 15 August 2020 and is known as "Decree August" and, among others, it provides for: 
  1. Extension of the ban of dismissal (expired on 17 August 2020) with differences on a case-by-case basis and extension of furlough for 18 weeks (i.e. the possibility to suspend employees from work without the payment of salaries. The employees receive an allowance directly from the National Social Security Agency "INPS").

Dismissals of executives for just cause, failure of the probationary period and natural expiry of the fixed-term contracts remain out of scope. Collective or individual dismissals for redundancy can be served upon termination of the furlough or after 31 December 2020. For companies which have used furlough after 12 July 2020, the 18 weeks start from 12 July. Therefore, such companies could start to dismiss employees from 15 November 2020.
 
2. Possibility to extend fixed-term contracts up to the threshold of 24 months even in the lack of "technical-organisational reasons" or "replacement reasons"
 
3. Exemption from the payment of social security contributions for new hires under permanent contracts of employment 

The exemption from the payment of social security contributions is for a maximum period of 6 months, starting from the hiring of the new employee under a permanent contract of employment and is up to approximately EUR 8,000. 

Please also consider that on 9 April 2020, the "Liquidity Decree" (Decreto Liquidità) was enacted and turned into law in June 2020. Amongst others, the Decree provides for: (i) tax and social security reliefs; and (ii) the possibility for individuals and companies to apply for low interest rate loans, totally or partially guaranteed by the State.
 
What are employers' obligations in respect of COVID-19? 
  1. Smart working agreements can still be commenced without the need for the ordinary formalities until the envisaged end of the state of emergency (currently, 15 October 2020). Then, if companies intend to extend smart working, the employees must execute a full smart working contract, as provided by the law.

  2. The body temperature of employees should be measured before they enter the company premises.  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. Employers should still opt for voice calls or video conferences instead of business trips.

  4. 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 one metre must be ensured among people standing in the same room. In addition, people must wear face masks. 

  5. Employers must limit access of third parties (e.g. suppliers and providers) to corporate offices/premises to 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;

  6. 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 sanitised.

In addition to the above, all employers have health and safety obligations to keep employees informed of the 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; and

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 perspective, 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 an announcement 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 one metre, washing regularly hands, etc.); and

  • The obligation to promptly inform the employee in the event of fever or flu symptoms while working, whilst remaining at a distance of one metre 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 test 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; and

  • a privacy notice should be provided 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. for the length of 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 the 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. In such cases, the employee’s right to privacy and dignity must be ensured. 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 sanitised 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 8 September 2020