given the current health emergency situation, and the growing parallel debate regarding the equalization of the Covid-19 infection at work accident with virulent cause (over 43 thousand complaints were received by INAIL at May 15) , We would like to help clarify the possibility of introducing a “criminal shield” to protect employers, to protect any liability in the event of contagion from one or more workers.
In this regard, I would like to clarify the point of view of the National Association between Mutilated Workers and Disabled Persons (ANMIL), which has been entrusted with the protection and representation of victims of accidents at work since 1943 and has been promoting for over 75 years initiatives aimed at improving the legislation on accidents at work and reintegration into the workplace, also offering numerous personalized support services in the social security and assistance fields. Starting from these bases and assumptions, with the gradual resumption of activities, there is much discussion about the aforementioned equation of the Covid-19 infection, contracted on the occasion of work or while traveling, to work accident with virulent cause, with the danger, according to some, of a consequent automatic expansion of the sphere of employer, civil or criminal liability.
It is above all important to clarify that this equalization took place by means of a regulatory provision, art. 42 of Legislative Decree no. 18, of 17 March 2020 (so-called DL Cura Italia), therefore it is false to state therefore, as instead stated by some media, that the equalization was introduced by INAIL, which if anything is the Insurance Institute which for this measure has been invested with the onerous task of evaluating the claims of the workers or their families for the recognition of the accident by Covid-19, providing, in the event of acceptance of the request, to provide the related economic benefits, having mere insurance and indemnity nature .
As a consequence of certain erroneous interpretations, the possibility of introducing a “criminal shield”, that is a rule capable of excluding the employer’s liability for injury from Covid-19, is being discussed.
Well ANMIL, in this context, aligns itself with what INAIL has supported in circular no. 22 of 20 May 2020, i.e. there is no legal automatism in the recognition mechanism of the Covid-19 injury, since the reporting of an accident due to a new coronavirus infection does not automatically determine its recognition by the Institute.
Citing the aforementioned circular: “compliance with containment measures, if sufficient to exclude the civil liability of the employer, is certainly not sufficient to invoke the failure to protect accidents in cases of contagion, since it is not possible to claim the risk in the workplace zero”. Continuing, the circular asserts that it is not possible to confuse the conditions for the provision of insurance compensation with those that underlie criminal and civil liability, which must be rigorously ascertained through predetermined ad hoc criteria.
The “criminal shield” towards employers is therefore far from necessary, since the responsibility of the employer is and will only be conceivable in the event of violations of the law that have been demonstrated and of obligations deriving from experimental or technical knowledge that in the case of an epidemiological emergency, they can be found in governmental and regional protocols and guidelines.
Welcome, therefore, as announced by the Minister of Labor and Social Policies Nunzia Catalfo during the Chamber’s Question time, the drafting of a rule with a specific clarifying intent, aimed at dispelling doubts about the responsibilities of employers in case of contagion from COVID-19. Be careful not to give life to a measure that, in such a delicate phase of initial restart, uses precisely the uncertainties to break down workers’ protections: in other words, that unfounded and pretext arguments are not used to authorize a return to companies outside the rules.
As mentioned, it has not in any way been expanded, through the much discussed article 42 of Legislative Decree no. 18 of 17 March 2020 (the so-called “Cura Italia”), the scope of the criminal liability of the employer or the introduction of any form of strict liability for the same: the rule, in fact, simply extended the scope of payment of the compensation INAIL.
Therefore, the criminal responsibility of the employer remains subordinate to the results of a process, through which it remains necessary to demonstrate that the employer has not done everything necessary, in terms of preventive measures, to avoid the occurrence of the harmful event, in addition to the presence of a direct correlation between this omission of cautions and the occurrence of the infection.
As claimed by INAIL within the aforementioned Circular no. 22: “INAIL’s recognition of the right to benefits cannot be relevant to support the charge in criminal proceedings, given the validity of the principle of presumption of innocence, as well as the burden of proof”.
Employer liability therefore remains subject to the results of a trial and compliance with the rules and regulations relieves the employer of any liability, while the introduction of a “criminal shield”, rather than going in favor of employers who, having scrupulously followed the existing rules would already enjoy a criminal shield directly deriving from correct and diligent behavior, instead it would risk softening the current system towards defaulters.
I extend my most cordial greetings to you and your readers,
* National President of ANMIL Onlus