On 20 May 2020, the National Institute for Insurance against Occupational Accidents (INAIL) published Circular 22 which provided certain clarifications in relation to categorising the Covid-19 infection as an occupational illness.
Reference regulatory framework
Article 42, paragraph II of Decree-Law 18 of 17 March 2020, better known as the “Cura Italia Decree“, later converted into Law No. 27 of 24 April 2020, states that “In verified cases of coronavirus infection (SARS-CoV-2) in the workplace, the certifying doctor draws up the normal accident certificate and sends it electronically to INAIL which ensures that the ill person will receive social security protection in accordance with applicable provisions“.
The insurance institute dealt with this issue in its Circular No. 13 of 3 April 2020, which provided operating information for the protection of workers who have contracted the coronavirus while at work, following the entry into force of the above provision. INAIL stated, more specifically, that for health care workers exposed to a high risk of infection and also for those whose work brings them into continuous contact with the public and/or with consumers/users, there is a simple presumption that the Covid-19 infection has an occupational origin which, it notes, is always rebuttable“.
The content of Circular 22 of 20 May 2020
In its Circular 22 of 20 May, INAIL firstly reiterated that Article 42, paragraph II of the Cura Italia Decree merely reaffirmed a principle of case law going back for many decades, by which if infectious diseases (e.g. hepatitis or AIDS), are contracted at work, they should be always be categorised and treated as occupational illnesses. This is because a virulent cause is equated to an injury at work caused by trauma, even if the effects take time to manifest themselves.
In relation to verifying the contagion, INAIL has stated that despite the aforementioned simple presumption, social security protection is not automatic. The existence of known facts must always be verified: in other words, this simple presumption of occupational origin should be founded on the existence of serious, specific and consistent items of evidence.
Therefore, this simple presumption presupposes a rigorous assessment of the facts and circumstances underpinning the conclusion that the infection occurred while at work (such as work procedures, analysis of the time the infection appeared etc.), however the Institute is entitled to present evidence rebutting this presumption.
In conclusion, the recognition of the professional origin of the contagion is based on a judgment of reasonable probability and is completely separate from any assessment of the employer’s responsibility for any omissions that could have caused the contagion.
In this context, the insurance institute lays to rest a recent debate that has arisen in this area, by clarifying that recognising the occupational origin of the infection is very different from attributing criminal and civil liability to the employer for a Covid-19 infection contracted by his employees. In order for this liability to exist, there must be strong evidence of a causal nexus and also that the employer’s conduct was, at the very least, negligent.
Therefore, the preconditions for paying out INAIL social security benefits should not be confused or conflated with the preconditions for the employer’s criminal and civil liability, which should be strictly ascertained by means of criteria which are different from those used to decide whether a person holds particular social security entitlements.
INAIL’s clarification is, moreover, in line with the recent case law on the matter, according to which “[…] one cannot automatically assume from the simple occurrence of harm that inadequate protective measures were adopted; rather, the harm in question must derive causally from the infringement of specific obligations of conduct imposed by law or suggested by technical or experimental knowledge in relation to the work carried out” (Supreme Court of Cassation No.3282/2020).
In view of these arguments, INAIL concludes with the statement that the employer will be liable only for violation of the law or of obligations arising from experimental or technical knowledge, which in the case of the COVID-19 epidemiological emergency may be found in governmental and regional protocols and guidelines.
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