Anti-Covid19 measures in the workplace: from the (known) health emergency to the (feared) sanctioning emergency

Abstract

The essay deals with the problems triggered by art. 42, para. 2 of the Decree “Cura Italia” that assimilates the cases of confirmed Coronavirus infection at work to cases of injury. Among the issues addressed, there is the dreaded “sanctioning emergency” that would result from the initiation of criminal proceedings to ascertain the employer's responsibility in the event of a contraction of the Covid-19 illness by a worker. The A., first of all, makes some proposals on how to manage the overburdening of the prosecution offices by speeding up preliminary investigations. He then provides some answers to the problem of possible exemption from liability for the employer if all the measures provided in the Decrees have been complied with. After pointing out the potential decisive nature of the lack of scientific knowledge about the pathogenesis related to the virus, in parallel with the judicial experience in the field of asbestos diseases, it is argued that even if the legislator ensures the absolute determination of the precautionary rules, there would be no certainty for the employer complying with them to be exempt from liability. The effort to be made is rather a rethinking of the criterion of guilt which, drawing on the experience of medical liability, offers more appropriate criteria for the attribution of liability.