Covid-19 business criminal law and other issues in Italy

The COVID-19 outbreak has led the Italian Government to issue a series of measures aimed at limiting the spread of the virus throughout Italy. In particular, the Decree of the President of the Italian Council of Ministers of 10 April 2020 (and its subsequent amendments) (the “Business Suspension Decree”) has suspended certain business activities (such as cinemas, gyms, hairdressers, beauticians) while permitting certain business activities to continue (such as banks, pharmacies and food retailers).

As a result of article 42, paragraph 2, of Legislative Decree no. 18 of 17 March 2020 (the “COVID-19 Decree”), where a person contracts coronavirus at work, this is treated as an “injury” and, as such, falls within the scope of Legislative Decree no. 81 of 9 April 2008, which regulates health and safety at the workplace (the “H&S Decree”). As a result, pursuant to articles 17, 28 and 29 of the H&S Decree, companies whose activities are not currently suspended by the Presidential Decree of 10 April 2020, as well as companies resuming business following the lockdown, are obliged to assess the risk of an “accident” deriving from COVID-19 and the company’s Risk Assessment Document (“DVR”) should take account of this risk. 

If an employee becomes infected with the virus, the employer may be criminally liable for personal injury through negligence (“lesioni personali colpose” - pursuant to article 589 of the Italian Penal Code) or, in the event of death of the worker, for manslaughter (“omicidio colposo” - pursuant to article 590 of the Italian Penal Code). These offences, if committed in violation of the rules for the prevention of accidents at work, fall within the so-called predicate offences (“reati presupposto”) and so also give rise to administrative liability for the company. 

Exposure, or risk of exposure, to a business partner or member of the public may also give rise to criminal liability for the company’s “legal representative” (the person or persons with authority to act on behalf of the company, generally its directors) under these provisions, and in addition, for culpable offences against public health (“delitti colposi contro la salute pubblica” – pursuant to article 452 of the Italian Penal Code). However, administrative liability would not arise in such circumstances, as the offences do not involve rules for the prevention of accidents at work, and culpable offences against public health are not classed as predicate offences, from which administrative liability of the company arises.

With regard to exposure or risk of exposure to COVID-19 to staff, it must first be pointed out that according Italian law, while employees are employed by the company, the board is treated as the “employer”, unless the board has delegated decision-making and spending powers to another person (or persons) – as often happens - in which case that person (or persons) would be the “employer”.  Failure to carry out the risk assessment could result in a penalty for the “employer”.

In addition, if an employee becomes infected with the virus while at work, the employer may be criminally liable for personal injury through negligence (“lesioni personali colpose” - pursuant to article 589 of the Italian Penal Code) or, in the event of death of the worker, for manslaughter (“omicidio colposo” - pursuant to article 590 of the Italian Penal Code).

However, in order for the employer to be held liable, it must be proved beyond any reasonable doubt:

• that the employer failed to adopt measures - as outlined in the “Protocollo condiviso di regolamentazione delle misure per il contrasto e il contenimento della diffusione del virus Covid-19 negli ambienti di lavoro” (i.e. the protocol regulating measures to combat and contain the spread of the Covid-19 virus in the workplace – the “Protocol”), which became effective on 14 March 2020;
• that the failure to adopt such measures is due to the negligence (“colpa”) of the employer (for example, due to the breach of the obligation to carry out the risk assessment pursuant to articles 17, 28 and 29 of the H&S Decree);
• that the failure to adopt the required measures caused the infection of the worker in the workplace. 

With regard to exposure, or risk of exposure, to COVID-19 of business partners and the public, the legal representative of the company may face criminal liability for the following offences:

• personal injury through negligence (“lesioni personali colpose” - pursuant to article 589 of the Italian Penal Code);
• manslaughter (“omicidio colposo” - pursuant to article 590 of the Italian Penal Code);
• culpable offences against public health (“delitti colposi contro la salute pubblica” – pursuant to article 452 of the Italian Penal Code).

In these cases, it must be proved beyond any reasonable doubt:

• that the legal representative has taken no security measures, as outlined in the Decree of the President of the Italian Council of Ministers of 10 April 2020 (and its subsequent amendments);
• that the failure to adopt such measures is due to the negligence (“colpa”) of the legal representative;
• that the failure to adopt the measures caused the infection of the business partner/member of the public.

The above offences are subject to the following penalties:

• failure to carry out the risk assessment provides a penalty between three to eight months imprisonment and a fine between 3,071.27 to 7,862.44 Euro for the “employer”;
• personal injury through negligence (“lesioni personali colpose” - pursuant to article 589 of the Italian Penal Code) carries a penalty of imprisonment for up to one year and a fine of up to 2.000,00 Euro for the employer or the legal representative of the company;
• manslaughter (“omicidio colposo” - pursuant to article 590 of the Italian Penal Code), provides for a penalty of up to seven years imprisonment for the employer or the legal representative of the company;
• culpable offences against public health (“delitti colposi contro la salute pubblica” – pursuant to article 452 of the Italian Penal Code) carry a penalty of between one to five years imprisonment.

In terms of administrative liability, a company could be punished with an administrative fine up to EUR 1.549.000,00 and disqualification from conducting business for up to one year.

At the time of writing, we are not aware of any actual prosecutions of businesses or senior management relating to breaches of these rules.

The Business Suspension Decree recommends the application of the following general measures for businesses:

• Interpersonal distancing;
• Cleaning of the workplace at least twice daily;
• adequate natural ventilation and air exchange;
• accessibility of hand disinfection systems;
• Use of face masks in enclosed places; 
• Use of disposable gloves in purchasing activities; and 
• Regulated and staggered access arrangements.

Companies whose activities are not suspended should comply with the measures provided for in the Protocol, such as:

• taking the body temperature of the employees at the entrance;
• regulating access of to suppliers;
• adopting individual protection measures;
• promoting remote working (agile work or "smart working"); and
• avoiding collective meetings in crowded indoor situations.

According general principles of civil liability, a business can be exposed to the risk of compensation claims from persons who have contracted the virus due to a business operation during lockdown, or its aftermath, if the business did not abide health and safety measures provided by law or by contracts.

For businesses permitted to continue their commercial dealings during the lockdown, since 14 March 2020, there have been in place recommended measures to prevent and limit the spread of coronavirus in workplaces, to avoid collective meetings in crowded indoor situations, and more generally in risky situations that may involve not only workers, but also business partners and visitors.

The same measures have been implemented for the lockdown-aftermath ( under the “Protocol”), and specific measures may be identified for different categories of business, during the gradual re-opening of businesses (for example,  for bars and restaurants). Clearly, liability in each case will be fact-dependant, thus it is not possible to identify every sub-type of claim that could be brought or asserted in every circumstance. 

In any case, a claimant must be able to prove that the infection was contracted because the business was in beach of the Protocol, or any other measure provided by law or by contract, and this is true both for business partners and a member of public. 

Without prejudice to the general rules stated above, it must be noted that, because the infection has been equated to an accident at work, employees who unavoidably come into contact with the virus (for examples doctors, nurses, and building-cleaning employees) or have a major risk of exposure (for example supermarket employees), only need to prove the fact that their job places them at a high-risk of infection. Businesses, on the other hand, would be required to show that the opposite was true. The company may, however, take out an insurance policy to cover the claims for damages in civil proceedings.

Italy does not provide a mechanism for collective action.