In order to deal with the emergency arising from the Covid-19 pandemic as quickly as possible, Studio Trifirò & Partners has set up a task force of professionals with the duty of collecting, interpreting and coordinating the recent regulatory interventions on the matter. Our customers, also in view of the imminent reopening of the company premises, can thus receive prompt and effective assistance on all legal directives, conduct and interpretation guidelines to be abided by in order to better face the health and economic emergency caused by coronavirus .
Trifirò & Partners contributes its in-depth expertise in solving all kinds of issues related to the current situation, from health rules to remote working, from holidays to permits, from contributory aspects to layoffs, up to the civil and criminal responsibilities in articles 2043 and 2087 cod. civ. and L. 8 June 2001, n. 231.
Coronavirus infection is an occupational illness
For some days now, Phase 2 has begun to speak more and more insistently, but it certainly cannot be said that this will reduce pressure on employers. In fact, with the gradual return to work on company premises, a further new and unexplored panorama of burdens and responsibilities opens up for companies wishing to resume their activities. The starting points for this would be many and perhaps a dedicated monograph would not be enough for a treatment that could be said to be exhaustive. However, one theme among all – perhaps even for its symbolic value – is most evident in the eyes of the interpreter. This is the provision contained in the second paragraph of art. 42 DL 17 March 2020 n.18, that states that coronavirus infections contracted at work are considered as accidents at work. This, in addition to entailing that welfare services are provided by INAIL also for the quarantine period, gave the latter the opportunity to denote the interpretative criteria of the expression “at work”. The Social Security Agency, with Circular 3 April 2020, n. 13, defined the scope of protection of the aforementioned art 42, second paragraph, of Legislative Decree 18/2020, establishing:
a) for healthcare professionals a high risk until it becomes specific;
b) for workers who have constant contact with the public, a high but not specific risk;
c) for other cases, the medico-legal assessment will follow the ordinary procedure.
INAIL has therefore anticipated for a vast and indefinite circle of workers, the simple presumption of professional origin of the coronavirus disease. The INAIL Circular, of course, applies to regulating the conduct and relations with the entity, but, as is known, it also assumes an indirect interpretative value regarding the professional cause of the disease and the consequent biological damage, also in future cases between private individuals. However, it is in this perspective that the simple presumption foreseen by the Circular of April 13 becomes problematic. In fact, this explicitly refers to art. 2729 cod. civ. which states that “presumptions not established by law are left to the prudence of the judge, who must admit only serious, precise and concordant presumptions”.
Therefore, INAIL qualifies the fact of having constant contact with the public during work as a presumptive element that can be used (even alone) by the judge for the purpose of his free conviction pursuant to art. 116 cod. proc. civ. However, it is worth remembering that the presumption, as indirect evidence, is allowed to be used by the judge only to prove a fact for which there is no direct evidence (documents, witnesses etc.).
In a nutshell, the presumption envisaged by INAIL entails a procedural fallout which – in the absence of direct evidence – is to raise the claimant’s evidence of the causal link between coronavirus and the performance of work. According to the interpretation of the Social Security Agency, the worker will “simply” have to prove their ill condition and have performed tasks in contact with the public, without having to prove that they caught the disease at work. On the contrary, a possible employer defendant in court would be burdened, in addition to the usual exonerating evidence, also with direct evidence on the absence of a causal link between the duties and illness. Proof that, being “negative”, assumes the connotations of a probatio diabolica, however if provided in a documentary way, would lead to a rejection of the worker ‘s claims pursuant to the aforementioned hierarchy of tests pursuant to art. 116 cod. proc. civ.