Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
NOTE: This article was updated on March 30, 2020. Because the COVID-19 situation is dynamic, with new governmental measures each day, employers should consult with counsel for the latest developments and updated guidance on this topic.
The spread of the novel coronavirus (COVID-19) across the globe remains a significant concern in the workplace. Employers are confronting difficult questions regarding how to handle mandatory lockdowns, safety and health rules, travel restrictions, compensation, and other employment issues. The following Frequently Asked Questions (FAQs) are designed to address some of the more common questions that employers with operations in Italy currently face. Employers are also encouraged to consult relevant FAQs put forth by the World Health Organization (WHO) and the Ministry of Health of the Italian government.
1. Should an employer restrict travel to all “affected areas” where there have been confirmed cases of COVID-19 infections, as reported by the World Health Organization (WHO)?
Yes, an employer should restrict business travel. Additionally, on March 14, 2020, employers and trade unions signed a protocol introducing measures to combat and contain the spread of COVID-19 in workplaces, including a ban on all national and international business trips.
2. What should an employer do if an employee shares that they plan to travel to an affected area?
Pursuant to various decrees updating the provisions relating to health and hygiene in the workplace, employers must notify the relevant public health authorities if an employee refuses to comply with such requirements. Employers must inform all employees about the provisions of the authorities. In particular, employers shall ban access to company premises for those who, in the last 14 days, have traveled through risk areas, according to WHO guidance.
3. How should an employer handle employees who have family members who have traveled to affected areas?
If an employee has had close contact with a family member who has traveled to a high-risk area, the employer may notify authorities and consult the company’s doctor to determine whether employees’ health and safety have been compromised. The employer must inform all employees about the authorities’ provisions regarding COVID-19 procedures and regulations. For example, employees should be informed that they will not be granted access to the company’s premises if symptoms are detected or they have been subject to high-risk conditions. Employees have aduty to report any of the above.
4. Can we prevent employees from traveling to affected areas for personal reasons?
At this time, Italy is subject to a general all-country lockdown. Employees need to comply with public authorities and regulations regarding lockdowns and travel bans. If an employer knows about possible non-compliance by an employee, the employer may report it to public authorities and the employee may be subject to disciplinary action.
5. What discrimination issues should employers address/be aware of?
Employers must make sure not to profile employees, customers, suppliers or other third parties based on their race or ethnicity or unfounded fears of COVID-19 infection.
6. What are the employer’s obligations to prevent harassment of those suspected of being infected?
Employers are required to prevent harassment of individuals based on their health status. To this end, employers should remind employees of the company's policies against harassment and discrimination and promptly investigate and respond to any complaints of harassment or bullying in the workplace. Moreover, employers must protect the confidentiality of employees’ medical information and, in general, abide by privacy principles related to sensitive data..
7. Can employers take the temperature of employees who are coming to work?
Given the current emergency situation, employers may consult the company's doctor to determine whether taking employee temperatures can be considered an appropriate measure to protect the health and safety of the workplace. The temperature reading must be managed in a way that complies with privacy principles, and therefore:
- the measurement must take place in a setting that guarantees confidentiality and containment;
- the individual carrying out the measurement must provide information on the processing of personal data to each individual worker, specifying that: (1) the purpose of the processing is the prevention of contagion from COVID-19; (2) the legal basis of the test is the implementation of the anti-contamination security protocols pursuant to art. 1, no. 7, letter d) of the Prime Ministerial Decree of 11 March 2020; and (3) the duration of any data storage is set to conclude at the end of the state of emergency;
- the data derived from the measurement activity may be processed exclusively for purposes of prevention from contagion by COVID-19 and shared only with specifically delegated personnel, also for the purposes of data processing, and in compliance with specific regulatory provisions (e.g., in the event of a request by the Health Authority for the reconstruction of the supply chain of any "close contacts of a worker found to be positive at COVID-19").
8. Are there any rules on what employers are allowed to do concerning subjecting employees to medical examinations or health-related tests that would apply to an emergency situation involving a communicable illness such as COVID-19?
Generally, employment-related medical examinations must be performed only by competent bodies (i.e., public or specialized institutions) and in very specific cases by the company’s doctor. During this emergency situation, an employer may report an employee to the health authorities for quarantine and/or prevent access to company’s premises. In any event, there is a legal obligation for anyone to stay home if they have a temperature (over 37.5° Celsius) or other flu symptoms, as well as to report their conditions to a general practitioner and health authority.
SAFETY & HEALTH RULES
9. Are non-healthcare employees required to wear respirators or other personal protective equipment?
Under Legislative Decree no. 81/2008, employers must adopt the necessary measures to guarantee the safety and health of their workers, providing workers with any necessary personal protective equipment (PPE) and training them on proper use to avoid occupational risks. During the COVID-19 situation, under the recommendation of the company’s doctor, the employer may amend the company’s internal health and safety regulations (DVR) for each production unit and require employees to wear facemasks or other necessary PPEs. The general rule, in any case, is that if workers are not guaranteed a minimum distance of 1 meter in the workplace, the use of masks becomes mandatory.
Furthermore, the employer should ensure the daily cleaning and periodic sanitization of the premises, provide suitable cleaning agents for the hands, and recommend frequent cleaning with soap and water.
10. Can an employer with a public-facing business, prevent employees from wearing a surgical mask or respirator?
Given the emergency situation, employers should not prevent employees from wearing a respirator or PPE. Rather, employers should encourage employees to enforce the health and safety rules, including any special hygienic measures to protect the workplace.
11. What if an employee requests to wear some type of mask as an accommodation?
Given the emergency situation, any such request should be accommodated.
12. For employers that have events for large gatherings scheduled, should they cancel them?
Yes. The government has imposed a national quarantine for the entire country and all large gatherings are prohibited through at least April 15, 2020.
13. Has your country’s government issued travel advisories? (If so, please summarize the guidance and provide a link to the government’s website (if applicable)).
Yes, the website of the Ministry of Foreign Affairs of International Cooperation has created a special section with a focus on COVID-19 to ensure that users can travel informed and safe. The topics covered include: information on the spread of the new coronavirus and the associated pathology COVID-19; containment measures adopted by the Chinese authorities; areas affected by a limited number of cases outside of China; health checks at airports and entry restrictions in certain countries; World Health Organization recommendations; practical advice; and useful contact information for the Ministry of Health.
14. An employee who recently traveled to an affected area (in another country) is having difficulty re-entering your country:
(a) How can an employer help the employee get back into your country?
Currently, employers are unable to help in such situations.
(b) In the case of a foreign employee, will the government’s travel advisories affect an employer’s ability to get the foreign employee back into the country? (Discuss if there are visa-related issues.)
Yes, it may affect it. Currently, there are no particular visa restrictions for high-risk countries. However, the ability to enter Italy is not based on holding the appropriate visa, but rather on dealing with the virus.
UNEMPLOYMENT & OCCUPATIONAL RISK LIABILITY
15. Do employer-instituted quarantines or temporary shutdowns or mass lay-offs entitle workers to unemployment benefits or severance?
If a company shuts down operations based on a government mandate or due to a significant loss of business, the company may suspend employees in part or in full and utilize short-time work programs that allow employees to be partially paid by Italian authorities for the loss salary. Access to such welfare programs requires working with the unions.
Depending on the applicable measure for the employer and type of company, the following possible interventions could be implemented:
- Cassa integrazione guadagni ordinaria;
- Fondo di integrazione salariale;
- Cassa integrazione in deroga.
16. What are an employer’s workers compensation obligations if an employee traveled to an affected area for work and contracted COVID-19?
A court may require the employer to pay for any liability not covered by insurance and arising from having exposed the employee to COVID-19 infection by sending them to an affected area, despite the government advising against such travels.
WORKS COUNCIL/INDUSTRIAL UNIONS
17. In the event of a government-declared quarantine or state of emergency, does your country’s law override contractual provisions and allow for actions that might contradict a collective bargaining agreement (CBA)?
Yes, though there appears to be no conflict between the recent legislative developments and the current CBAs.
18. According to your government’s health department, what are the steps that employees should follow to notify the authorities that they suspect or are confirmed to have a COVID-19 infection?
The employee should contact the general practitioner and/or emergency numbers provided for each Italian region. Health authorities will then assess the case and establish the recovery program.
19. Can an employer require employees to self-report if having a COVID-19 infection?
The employer can inform employees of their reporting requirements and have the employees sign an acknowledgement letter in which they state to have understood their reporting requirements and the sanctions that may arise if they fail to comply. The employer must inform the employees about the requirement to promptly inform the employer of the presence of any flu symptoms during the performance of their working activity, as provided for by the shared protocol.
20. If one of our employees is quarantined, what information can we share with our employees? Who can we share it with?
The employer shall not share medical information regarding employees (even if they are quarantine). In coordination with the public health authorities, the employer may investigate contacts of the quarantined employee to protect other employees and guarantee health and safety at the workplace.
21. What privacy concerns do we need to be aware of when we are asking for the health information of our employees in order to evaluate whether they need to be quarantined?
Generally, quarantines should be issued by public health or other relevant authorities. In extreme cases (when an employee is clearly sick and insists on coming to work), the employer may consult with the company’s doctor, who may evaluate the status of the employee and determine fitness to work. No information may be shared with the employer, but rather only between the company’s doctor and the employee.
As this is a fluid and rapidly changing situation, please keep in mind that different or additional facts may warrant re-assessment of policies and practices so they can serve the best interest of employees, employers and the community at large. Accordingly, employers should consult with their employment counsel to keep updated on any new legislation or related legal development.