COVID-19 and criminal liability

The COVID-19 outbreak has led the Italian Government to issue a series of measures aimed at limiting the spread of the virus throughout the Italian territory.

In this regard, it should be pointed out that article 42, paragraph 2, of Legislative Decree no. 18 of 17 March 2020, provides that “in ascertained cases of coronavirus infection (“SARS- CoV-2”) at work, the certifying doctor shall draft the usual accident certificate and send it, electronically, to INAIL, which shall ensure, in accordance with the provisions in force, the relative protection of the injured person. INAIL's benefits in ascertained cases of coronavirus infections at work are also provided for the period of quarantine or permanence at home of the injured person with the resulting abstention from work. The mentioned accident events weigh on the insurance management and are not taken into account for the purposes of determining the fluctuation of the average rate for accident trends as per articles 19 et seq. of the Interministerial Decree of 27 February 2019. This provision shall apply to public and private employers”.

Therefore, the coronavirus infection is treated, in all respects, as an “injury” and, as such, falls within the scope of Legislative Decree no. 81 of 9 April 2008, which regulates the health and safety at the workplace.

As a consequence of the above, pursuant to articles 17, 28 and 29 of Legislative Decree no. 81 of 9 April 2008, the companies whose activities are not suspended pursuant to the Decree of the President of the Italian Council of Ministers of of 10 April 2020, together with companies that will resume business following the lockdown phase, are obliged to assess the risk of the accident deriving from COVID-19 and, consequently, also the Risk Assessment Document (so-called “DVR”) shall be drafted accordingly taking into account the mentioned risk.

Based on the foregoing, if an employee should be infected with COVID-19 while at the workplace, the employer may be liable for the crime of 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 sec. 590 of the Italian Penal Code).

However, in order for the employer to be held liable, shall 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” (“Protocol”) - aimed at preventing the coronavirus infection;
• 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 Legislative Decree 81 of 9 April 2008);
• the existence of the chain of causation (“nesso causale”) between the failure to adopt the above-mentioned measure and the infection due to Covid-19, where the infection, as the consequence of the work activity, must be proven.

Finally, it should be noted that the offences of manslaughter or personal injury through negligence as a consequence of the violation of the rules of health and safety at workplace fall within the so-called predicate offences (“reati presupposto”) and so gives rise - pursuant to article 25 - septies of Legislative Decree 231/2001 to the administrative liability of the company.

In this respect, it is necessary for the companies, after implementing the appropriate measures aimed at prevent the infection due to COVID-19, update the DVR, the company's health and safety procedures and the Model 231/2001.

In the above mentioned context is crucial the role played by the Supervisory Body (“Organismo di Vigilanza”) to be carried out throught the strengthen of the information flow system in place and the verification of the activities adopted by the companies in order to prevent the infection due to COVID-19.