Attorneys Paolo Momigliano, Niccolò Medica and Lucia Rapallo obtain a victory on behalf of a major operator of numerous healthcare and social care facilities before the Court of Savona, achieving the complete rejection of the claims brought by an employee who alleged that he had contracted Covid-19 during the performance of his work duties and who therefore sought compensation for damages suffered.
This is one of the first rulings on employer liability in the event of Covid-19 contagion allegedly occurring in the workplace: the judgment of the Savona Court is destined to constitute an important precedent, in particular for operators of healthcare and/or social care facilities (but, in general, for all employers) who have had to (and continue to have to) provide for the protection of the health and safety of workers during a period of pandemic.
In particular, the employee claimed to have contracted the disease during the performance of his duties due to alleged repeated breaches by the employer of its obligations in the field of safety, by virtue of what is provided, inter alia, by Legislative Decree No. 81 of 2008 and by the extensive national and regional regulations enacted to address the spread of Covid-19, as well as due to the alleged failure to provide adequate personal protective equipment (the so-called “PPE”).
On the other hand, the company provided evidence of having duly complied with the aforementioned national and regional regulations and with the numerous circulars and/or directives issued since the beginning of the health emergency, adopting all possible safety measures, taking into account the technical and scientific knowledge that evolved over time and the well-known difficulties in obtaining PPE, especially in the first months of the pandemic.
The employer also succeeded in demonstrating that the worker had participated in numerous non-work-related events, without having adopted, on the occasion of such events, the prudential safety measures to prevent possible contagion.
The company further argued that the recognition, by INAIL, of the accident and/or illness from Covid-19 had no bearing on the civil and/or criminal liability of the employer.
The Court of Savona – reaffirming the principle that a worker who complains of damage allegedly suffered in the performance of his duties bears the burden of proving not only the existence of such damage, but also the harmfulness of the work environment and/or in any case the violation by the employer of certain behavioral obligations imposed by legal and regulatory norms and/or contractual provisions, as well as the causal nexus between one and the other, since Article 2087 of the Civil Code does not constitute a case of strict liability on the part of the employer – rejected the employee’s appeal, recognizing the legitimacy and correctness of the initiatives undertaken by the employer to protect worker safety, in compliance with what is provided by the “Shared Protocol for the Regulation of Covid-19 Containment” approved by the Government and the Social Partners on March 14, 2020, and in a general context characterized by a pandemic situation that was completely unknown, by a regulatory framework in continuous evolution and by evident difficulties in supplying PPE.
Specifically, the Court also noted that “the employer is required to guarantee the punctual implementation of all measures and precautions typified by the various measures enacted to combat the spread of Covid-19 contagion, adapting them – as the Protocol signed by the Government and social partners requires – to the specific productive and organizational context of the company“.
The Judge further emphasized that, in the absence of violations by the employer in protecting its employees, contagion that occurs in any case in the workplace does not constitute an employer’s breach and remains covered by INAIL protection, pursuant to what is provided by Article 42 of Decree-Law No. 18 of 2020 (the so-called “Cura Italia”).
The ruling in question also recalled the content of INAIL Circular No. 22 of May 20, 2020, in the part where it is provided that “the recognition of the occupational origin of contagion is based on a judgment of reasonable probability and is completely detached from any evaluation regarding the imputability of any omissive conduct on the part of the employer that may have been the cause of the contagion“; in other words, admission to INAIL insurance protection for Covid-19 contagion has no bearing on the recognition of employer liability, as the fault of the latter in determining the event was not established in this case.
Finally, according to the Court, the worker could have reasonably contracted the disease in places and environments other than the workplace.
