In the aftermath of the COVID-19 pandemic, it was highlighted the importance of understanding which work activities should have updated the Risk Assessment Document (DVR), i.e., the document that is mandatory under Decree-Law 81/08 and that all employers must prepare to assess risks and hazards in order to achieve health and safety protection.
As is well known, this decree in Chapter X Art.266 talks about the risk of exposure to biological agents and specifically "to all work activities in which there is a risk of exposure to biological agents." Because, however, the pandemic affected all work sectors, there was some discussion as to whether the virus, although not present in the production process, should be assessed as a risk at work because it could be introduced externally through a visit by a customer or other personnel.
Risk assessment is defined in the Occupational Safety Consolidation Act as "the comprehensive and documented assessment of all risks to the health and safety of workers present within the organization." Based on what has been written, it would seem that DLG 81/08 places no limits on the scope of risk assessment and therefore evidences how each work activity should update its DVR.
Lorenzo Maria Pelusi, a lawyer specializing in labor law and occupational safety, in the essay, "Workers' Health Protection and COVID-19: A First Critical Reading of Employer Obligations," talks about the obligation to update the DVR, only for four hypotheses, namely:
So, among the causalities from which the obligation to rework the DVR does not include environmental circumstances unrelated to company-specific risks such as an epidemic. Pastucci also talks about how "Faced with the appearance of a generic biological risk that threatens public health it is up to the public authorities - having them institutionally the necessary tools (scientific expertise and powers) - detect it, give notice of it, indicate preventive measures and enforce them. The employer will have to comply with them, obviously having to comply with the general precept, without having to distort its normal preventive project in the company because of this. These measures will be temporarily - for the duration of the emergency phase - alongside the ordinary ones, retaining their own distinct nature and function."
Finally, also the Labor Inspectorate pointed out in Note 89/2020 "how with respect to such obligations, not attributable to the activity of the employer but materializes in an external situation and that they are external dynamics not controllable by the employer. In such cases the employer would not be required to update the DVR because it is a risk that is not attributable to the activity and work cycles and, therefore, not part of the concrete possibility of assessing with full awareness all the management aspects of the risk, in terms of eliminating it at the source or reducing it, through the implementation of the most appropriate and reasonable technical organizational and procedural prevention measures that are technically feasible. Different is the case of health or social-health work environments or if the biological risk is an occupational risk, already present in the exposure context of the company."
In view of the pandemic therefore, risk assessment is the responsibility of the competent authorities who develop and establish precautionary measures to which everyone must adhere. Employers must also make sure that they are adhered to, and work activities that are not required to update the DVR must create a kind of appendix to the DVR to trace the measures implemented "to show that they have acted to the best of their ability, even beyond the specific precepts of Legislative Decree No. 81/2008."
Employers, on the other hand, who need to carry out or update the DVR for the biological risk of SARS COV2 must base it on the article of Legislative Decree 81/08, considering all the characteristics of the biological agent, the working methods and especially the classification of biological agents that may be a hazard to human health.
According to Annex XLVI of Legislative Decree 81/08 it is classified coronaviridae virus class 2. The new Commission Directive (EU) 2020/739 of June 3, 2020, European Union Directive "Amending Annex III of Directive 2000/54/EC of the European Parliament and of the Council as regards the inclusion of SARS-CoV-2 in the list of biological agents known to cause infectious diseases in humans and amending Commission Directive (EU) 2019/1833" inserts SARS-CoV-2 virus in group 3.
To compile an appropriate DVR one should also define an accurate COVID-19 safety plan containing all the specific measures to be taken, in accordance with the April 26, 2020 DPCM and the April 24, 2020 shared protocols attached to the DPCM itself. It can be drafted by evaluating:
In fact, it must be remembered that the DVR is one of the tools that is needed in the area of occupational health and safety, and all the measures present are necessary to protect the worker. This is also because the law requires assessing any source of risk to workers, in which COVID is also included.
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