Refusal to wear a mask, legitimate suspension from work and remuneration (Guida al Lavoro of Il Sole 24 Ore, 9 July 2021 – Vittorio De Luca, Luca Cairoli)

The principle

Health and safety in the workplace – worker’s obligations – refusal to wear a mask – disciplinary relevance – legitimacy of suspension from work and remuneration

“Due to the tragic situation which the country and the world experienced because of the Covid-19 epidemic, imposing mask wearing on workers by [the employer], stated in the Protocol shared with the trade unions, is not an irrational or excessively burdensome measure, but fully responds to the employer’s duty to best protect its employees.” The conduct of an employee who refuses to wear a mask at a company meeting is completely unjustified and the resulting disciplinary sanction of suspension from work and remuneration imposed by the employer is legitimate.

Introduction

Article 2087 of the Italian Civil Code imposes on the employer the obligation to “adopt measures which, according to the work nature, experience and technique, are necessary to protect the physical integrity and morality of employees.”

In the emergency following the spread of the Covid-19 virus, the Cure Italy Decree Law, treated Covid-19 infection as a workplace related accident, meaning that the employer’s burden of ensuring compliance by workers with the measures introduced in the company to protect their health and safety was more onerous.

During the emergency, the Government and the Social Partners signed the “Shared protocol for the regulation of measures to combat and contain the spread of the Covid-19 virus in the workplace” on 14 March 2020. This was subsequently updated by the Protocol of 24 April 2020. On 6 April 2021 they signed the “Shared protocol for the updating of measures to contain the spread of the SARS-Co V-2/COVID-19 virus in the workplace.”

Among the safety measures included in the emergency regulations, there was the employer’s obligation to provide workers with surgical masks, the wearing of which was made compulsory when sharing indoor or outdoor work environments.

In addition to the duties imposed on the employer by the legislation on health and safety, there is an obligation for the worker to cooperate in fulfilling the measures taken by the employer to protect health and safety in the workplace, as provided for by Art. 20 of the Health and Safety Consolidation Act.

Continue reading the full version published in Guida al Lavoro of Il Sole 24 Ore.