The SARS-CoV-2 virus, which is responsible for the pandemic that continues to afflict a large part of the world's population, has put a great deal of pressure not only on health care facilities but on the same legal framework, which has recently been supplemented several times in order to cope, in an increasingly effective manner, with the ongoing emergency.
The sudden evolution of the critical situation, without historical precedent and for this reason not traceable to general rules, has clearly ended up involving, in workplaces, also the functions of the "Competent Physician",called by Legislative Decree 9 April 2008, no. 81 (bearing "Implementation of Article 1 of Law No. 123 of August 3, 2007, on the protection of health and safety in the workplace") to play a leading role in the protection of the health and safety of personnel.
This contribution intends, therefore, to investigate the recent jurisdictional evolutions that have most recently involved the aforementioned figure, not silencing its long-term implications: the evidence of facts seems, in fact, to have shown how in the emergency period the competent physician has been called upon not only to strengthen the usual collaboration with the employer, in the sense of the amplification of the traditional functions that are remitted to him, but also to deal with the implications given by the evolution of the normal patterns of work performance.
It is the normative datum that assists the interpreter about the definition of the legal profiles of the figure under consideration: as anticipated, Legislative Decree No. 81/2008 identifies it in the doctor, in possession of one of the titles and professional and training requirements specified in the subsequent Article 38, who collaborates with the employer for the purpose of risk assessment[1] and is appointed by the same to carry out health surveillance[2], as well as for all other tasks defined in the aforementioned decree.
That of the appointment of a "Competent Physician" represents, therefore, a specific obligation under the employer, contextually called upon to provide the former with any information regarding the nature of the risk present in the workplace, the organization of work itself and the planning and implementation of preventive and protective measures, the description of active production facilities and processes, as well as the measures taken by the competent supervisory bodies.
The main main duties are the following
The main tasks proper to the competent physician, let it be said for merely introductory purposes of the considerations that will follow and without any claim to exhaustiveness, can be summarized succinctly in an effective activity of planning health surveillance, in addition to that of predisposition and implementation of measures for the protection and psychophysical integrity of workers. Specific obligations instrumental to this essential function then concern the updating and safekeeping of a health and risk file for each worker subjected to health surveillance and imply the constant activity of information, to be addressed to the employer and the worker, regarding risks and findings of the activity conducted.
It appears, moreover, evident the importance of the figure of the competent physician also in collaborating in the drafting of the well-known risk assessment document (DVR), which is the non-delegable competence of every employer, pursuant to Article 17 of Legislative Decree No. 81/2008,
More recently, therefore, workplaces have become a crucial place for the purposes of prevention and counteracting the ongoing health emergency, rising to a potential time of inevitable contagion between employees who are there to share daily tasks. In this sense, it is quite clear how the competent physician finds himself performing a task of even greater importance, precisely in view of supporting the employer in arranging every suitable expedient to avoid risk. On the other hand, as recently emphasized by industry associations, in this context it seems essential to ensure a timely flow of information between the competent authorities at the country level and individual risk realities, with respect to which the intermediation of the competent physician may prove decisive.
January 31, 2020, should perhaps be considered the moment from which to start any consideration of the issue, an occasion of the state of emergency resolved by the Council of Ministers as a result of the health risk related to the outbreak of diseases resulting from transmissible viral agents.
On that occasion, it will be recalled, it was envisaged that for the implementation of the interventions for the organization and execution of relief and assistance to the affected populations, as well as to ensure the functionality of public services and strategic infrastructures during the state of emergency, provision would be made by means of ordinances, issued by the Head of the Department of Civil Protection as an exception to any provision in force and in compliance with the general principles of the legal system, within the limits of the resources allocated by the same resolution[3].
Followed, then, on February 23, 2020, the first decree law on "urgent measures on the containment and management of the epidemiological emergency from COVID-19"(d. l. n. 6/2020), accompanied by a large series of decrees of the President of the Council of Ministers (DPCM) bearing the further implementing provisions[4].
Still, Decree Law No. 9 of March 2, 2020, intervened to set urgent support measures for families, workers and businesses related to the epidemiological emergency from COVID-19, followed closely by Decree Law No. 11 of March 8, 2020, and subsequent Decree Laws No. 14 of March 9, 2020, No. 17, 2020, No. 18, March 25, 2020, No. 19, April 8, 2020, No. 22 and No. 23, April 30, 2020, No. 28, May 10, 2020, No. 29 and No. 30, May 16, 2020, No. 33, May 19, 2020, No. 34, and, finally, June 16, 2020, No. 52, and implementing DPCMs that it is not worth recalling here specifically, all pertaining to areas and topics closely related to the emergency regulations dictated for the COVID period.
These decrees are not the only ones to be issued in the COVID period.
In short, without this becoming the occasion for overabundant regulatory listings, it is certainly the writer's intention to document the incessant regulatory activity (note, moreover, that only the collection of acts issued by the Government has been accounted for)[5] that affected the emergency period, dictating specific provisions, for what forms the specific subject of this work, also for the protection of the worker in the places of performance.
This is, moreover, a normalization to be integrated with the individual ordinances issued at the regional level,[6] for the Lazio Region as of the President's Order No. Z00002 of February 26, 2020, a measure adopted pursuant to Article 32, co. 2, of Law No. 833 of December 23, 1978 on hygiene and public health.
Since the first decree law (the aforementioned d.l. no. 6/2020), then, in order to prevent the spread of COVID-19, the competent authorities were required, in municipalities or areas in which at least one person tested positive for which the source of transmission was not known, or in which there was a case that could not be traced back to a person from areas affected by the virus infection, to "adopt any containment and management measures that are appropriate and proportionate to the evolution of the epidemiological situation."
The authorities were required to
Significantly, it was already envisaged at that time that such measures could involve, in addition to actual bans on moving away from the affected areas, suspension of attendance at school and higher education activities, suspension of services open to the public, suspension of competitive procedures for hiring personnel, as well as the closure or restriction of the activity of public offices, exercise of public utility activities and essential public services[7] and of work and business activities in general.
As is well known, emergency rules have continued to be tightened as the infection has grown exponentially across the country, only to be revised at a later date as the scope of the phenomenon has been reduced. More recently, the measures taken have assumed a regional and more contextualized characterization, to correspond to the need to stem the epidemic in the most affected geographical contexts.
With regard to the role of Competent Physicians in the context in question, in order to outline their reference scenario, it is a must to mention two extremely relevant documents that have guided their work during the epidemiological emergency. These are, first of all, the "Shared Protocol for the Regulation of Measures to Combat and Contain the Spread of the Covid-19 Virus in the Workplace,"[8] signed on March 14, 2020 and supplemented and amended, as the emergency progressed, on April 26, 2020. It should, then, be noted the further "Technical document on the possible remodeling of measures to contain SARS-CoV-2 infection in workplaces and prevention strategies"[9], approved on April 9, 2020 by the Scientific Technical Committee established at the Department of Civil Protection.
In the wake of these, moreover, the Ministry of Health intervened with a Circular dated April 29, bearing the "Operational indications relating to the activities of the competent physician in the context of measures to combat and contain the spread of SARS-CoV-19 virus in the workplace and in the community", of which we will go on to carry out a more punctual review below.
The first Shared Protocol, more specifically, was signed at the invitation of the President of the Council of Ministers and the Ministers of Economy, Labor and Social Policy, Economic Development and Health, who promoted the meeting between the social partners, in implementation of the first measures of recommendation of understandings between employers' organizations and trade unions, referred to in the DPCM March 11, 2020, mentioned above. The importance of the document lies, as is clear from its introduction, in the drafting of guidelines regulating the contrast and containment of COVID-19 in workplaces: point 12, then, is specifically dedicated to Health Surveillance/Competent Doctor/RLS measures.
The provision is made here, to go into a degree of greater detail, the safe continuation, in the interest of workers, of health surveillance activities, while still complying with the hygienic measures contained in the Ministry of Health's decalogue. Indeed, it is clear from the ratio of the understanding, how surveillance represents one of the most important preventive measures of a general nature in relation to the epidemiological emergency, being able to intercept the first, possible symptoms of contagion.
The Ministry of Health has also been asked to provide a detailed assessment of the health surveillance activities in the interest of the workers.
In that same forum, moreover, the competent physician plays the fundamental role of sensitization and information with respect to the best activities to be conducted in the workplace in order to avoid the adoption, in the performance of ordinary tasks, of behaviors that present potential risk factors. In this sense, the Protocol also provided for full cooperation, in integrating and proposing all regulatory measures, between the competent physician, the employer, RLS (Workers' Safety Representatives) and RLST (territorial RLS).
Finally, provision has been made for the reporting to the company, by the same Competent Doctor, of situations of particular frailty or current or past pathologies of employees, so as to be able to better provide for their protection while respecting, however, the privacy of each individual.
The additional document referred to above, this time of an admittedly technical nature, was drafted by INAIL's Department of Medicine, Epidemiology, Occupational and Environmental Hygiene and, as mentioned, approved by the technical committee established for the emergency.
As anticipated in the "Preface," the document has two parts: the first identifies an innovative methodology of integrated risk assessment of contagion at work and, in particular, of "proximity related to work processes"; the second, focuses on the general adoption of organizational, preventive and protective measures, as well as fighting the onset of epidemic outbreaks,also recalling the aforementioned Protocol between the Government and Social Partners of April 14, 2020.
Also the document, as can be found in reading the chapter devoted to Prevention Strategies, of INAIL devotes special attention to the role of the competent physician, especially where it provides that, with a view to a participatory and integrated approach to the adoption of the procedures identified,his figure is among those determinants, in the corporate sphere, in assisting the employer in the timely monitoring of the implementation of the measures. In this sense, the integrated assessment of the Physician has been shown to be indispensable for the reallocation to another task or temporary unfitness for resumption of work by workers, in view of the commensuration of productivity against the real availability of workers in the transitional emergency phase. Hence, the demands for remote work, the articulation of shifts or the enhancement of the articulation of work by means of innovative technologies. Precisely because of the recognized "centrality" of the role ascribed to the Competent Physician, the INAIL goes so far as to hope for a generalized applicative provision that extends, during the emergency period (which, most likely, seems destined for further extensions), the perimeter of companies required to appoint this specialist figure to protect the health of workers, stating verbatim that "Relating to companies where the competent doctor is not already present, on an extraordinary basis, the appointment of a competent doctor ad hocfor the emergency period or alternative solutions, also with the involvement of public territorial structures should be thought of."
It is certain that, given the current and potential spread of the pandemic and the confusing situation that could soon be generated with the concomitant spread of common influenza viruses, the Competent Physician would rise to a guarantor figure of adequate workplace protection arrangements, since today - to paraphrase a suggestive expression - no work site can be said to be risk-free.
The competent physician would be the guarantor of adequate workplace protection arrangements, since today - to paraphrase a suggestive expression - no work site can be said to be risk-free.
An aspect of significant interest, which could militate towards the prospect hoped for by INAIL inducing any company to resort to the help of a competent physician, is to be found in the activity conducted in relation to the surveillance and health protection of so-called fragile workers, which, in view of the pivotal role of the competent physician in the protection of the health and safety of workers, cannot disregard the involvement of the same. These are contexts, these, well beyond the ordinary, as also stressed by the document under analysis, and which show profiles of significantly increased attention thresholds at times of high immunological risk, such as that generated by the current pandemic context. Also from this perspective, it seems to be possible to say that the activity of the competent physician has recorded a significant increase in empowerment, in the face of the concrete risk of exposure of fragile subjects[10].
In this sense, the "Technical Document"found in the Competent Physician a central role especially for the identification of susceptible individuals, as well as for the re-insertion in the employment context of the individual with previous SARS-CoV infection. At the time of said re-insertion, in fact, the conduct of the examination referred to in Art. 41, co. 2, letter e-ter of Legislative Decree No. 81/2008[11] is expected, also to assess specific profiles of riskiness and in any case regardless of the duration of absence due to illness, as an exception to the rule.
Important to the writer seems, therefore, the consideration of a risk of reactivation of outbreaks in workplaces, which continues to require the utmost attention of those in charge, in order to anticipate from the transitional phase measures aimed at combating them. This profile is dealt with in a specific chapter of the document under discussion, in the part in which it refers precisely to the involvement of the Competent Physician the collaboration with the Health Authorities aimed at defining the possible "close contacts" of a person present in the workplace and who has been found positive to the swab prescribed for the diagnosis of SARSCoV-2.
They are the ones who must be involved in the process of the diagnosis of SARSCoV-2.
A reference to the recent Operational Instructions[12] rendered by the Ministry of Health (which was also mentioned incidentally earlier) is necessary at this point. After reconstructing the normative and operational scenario of the activity of the competent physician, the indications make express reference to the fact that "with regard to the duties of the competent physician inherent to health surveillance and the provisions of Article 41 of Legislative Decree 81/2008 and the types of medical examinations included therein, it is believed that they should be guaranteed as long as the physician is allowed to operate in compliance with the hygienic measures contained in the indications of the Ministry of Health[13]and in accordance with the provisions of the World Health Organization (Rational use of personal protective equipment for coronavirus disease 2019 (COVID-19) WHO February 27, 2020) and recalled in Art. 34 of Decree Law March 02, 2020, No. 9"[14].
Following are indications regarding the identification of the types of medical examinations included in the health surveillance and the manner in which they should be carried out: in this sense, preference has been given to the conduct of examinations that present characters of urgency and indifference[15].
More generally, it is worth considering the identification of cases of possible deferability, at a time after July 31, subject to the assessment of the Doctor himself. These are, more specifically, periodic medical examinations and the medical examination at the termination of employment, referred to in Article 41, co. 1, lett. e) of the legislative decree in reference. Again, with a view to strengthening prevention, "the performance of instrumental examinations that may expose to infection by SARSCoV-2, such as, for example, spirometry, examinations under Article 41 paragraph 4, and examinations under Article 15 Law 125/2001 should also be suspended if they cannot be carried out in suitable environments and with suitable protective equipment."[16].
The Ministry of Health and Safety has also been asked to provide a list of the most important medical examinations in the country.
The Ministry of Health is also in charge, on the basis of what has already been reported above, of providing the Competent Doctors with the indications regarding the return to work in the company of the worker[17], on contract tracing,on the early identification of contacts and their contextual isolation, as well as on the conduct of the diagnostic tests deemed most appropriate[18].
New areas of significant interest, for the figure under consideration, seem to have to be identified in the vaccination phase, both for the management of sensitive information and data[19], and for the same possible collaboration - in the near future - in the vaccination campaigns that will be conducted within companies.
Epidemic trends still remain uncertain,despite the initiation of vaccinations against certain categories,therefore requiring maximum effectiveness in countering the risk of reactivation of outbreaks and the highest attention and cooperation not only of the health personnel involved but of the entire population., to be conducted in parallel with the constant monitoring of indicators that could prove fundamental in the perspective of accurate prevention.
It is equally evident that the challenge before which we are placed presents entirely new characteristics, destined to be accentuated by the globality of trade and transport and the high mobility that characterizes the society of modern times.
The employment relationship, constitutionally protected and safeguarded, moreover, shows itself to be an indispensable manifestation of individual sociality and professionalism, so much so that it integrates one of the factors of greatest development of human personality[20]. The fact that the places where it takes place enjoy the highest possible form of protection and security is in line with all the indications coming from studies on human rights and development of the person.
In this sense, the role of the Competent Physician, a figure not only long since legislatively provided for but now fundamental to the peaceful conduct of the working relationship, has shown at this historical moment the appropriateness of the constant evaluation of a task of interest to the entire community. The various moments of assessment and contribution to the isolation of risk cases, as well as analysis of the appropriateness of the adoption and maintenance of adequate social distancing even in the workplace, still show themselves as priority moments for the purpose of the pursuit of the institutional task that the 2008 legislative decree entrusts to companies and administrations all.
It seems, then, of priority order, as repeatedly reiterated by insiders, to conduct an adequate analysis case by case in relation to the specificity of each work context, with respect to which the figure of the competent doctor seems to encapsulate the professional specificities most useful for the preparation of appropriate channels of safety and prevention.
It is the consideration of the Ministry of Health that "if>the role of the competent doctor is prominent in the protection of occupational health and safety in the ordinariness of the performance of work activities, it is amplified in the current time of pandemic emergency, a period during which he goes to confirm his role as "global advisor" of the employer"[21].
It cannot, in fact, be silent about the fact that the pandemic, in itself, has brought out entirely new forms of work or, at any rate, of uncommon use in the Italian economy.
The reference is, it is understood, to agile, smart, remote work: the use of new technology, the use of new work contexts (such as could be the individual employee's home or ad hoc elected domiciles), if they present sure opportunities for increasing and diversifying productivity (certainly, with a view to decreasing social contact), also bear different and additional risk profiles, until now never really evaluated or, at any rate, tended to be excluded from in-depth analysis.
In the sense described, it seems to be possible to say that the role of the competent physician is destined to evolve and change, also in the wake of said scenarios offered by the pandemic. Happenings such as the one that has recently affected the entire world have brought to the attention of the practitioner in the field completely unprecedented situations: how will a possible pandemic reoccurrence have to be dealt with? Again, in the wake of what has happened, does it seem appropriate for prevention measures and organizational obligations themselves to be renewed and generalized or, at the very least, for emergency response protocols to be strengthened?
These are questions that professional and technical figures will be called upon to answer, likely soon. For all that is at attention here, suffice it to assert that the future of occupational safety will have everything to learn from a present that is already in flux, a harbinger of unprecedented developments and challenges.
The future of occupational safety will have everything to learn from a present that is already in flux, a harbinger of unprecedented developments and challenges.
[1] Art. 2, co. 1, lett. q) "Risk assessment": comprehensive and documented assessment of all risks to the health and safety of workers present within the organization in which they perform their activities, aimed at identifying appropriate prevention and protection measures and developing the program of measures to ensure the improvement over time of health and safety levels.
[2] Art. 2, co. 1, lett. m) "Health surveillance": set of medical acts, aimed at protecting the health and safety status of workers, in relation to the work environment, occupational risk factors and the way in which the work activity is carried out.
[3] See Council of Ministers Resolution January 31, 2020.
[4] DPCM February 25, 2020, DPCM March 1, 2020, DPCM March 4, 2020, DPCM March 8, 2020, DPCM March 9, 2020, DPCM March 11, 2020, DPCM March 22, 2020, DPCM April 26, 2020.
[5] There would be, in this regard, also to give mention of the acts issued by the Department of Civil Protection of the Presidency of the Council of Ministers, the Extraordinary Commissioner for the implementation and coordination of measures to contain and counter the epidemiological emergency COVID-19, as well as by individual ministerial compartments: see Ministry of Health, Ministry of Economy and Finance, Ministry of Economic Development, Ministry of Interior and Ministry of Justice.
[6] For Lazio Region activity see: http://www.regione.lazio.it/rl/coronavirus/ordinanze/.
[7] Reference is to Articles 1 and 2 of Law No. 146 of June 12, 1990, specifically identified.
[8] Available at the following link: https://www.inail.it/cs/internet/docs/alg-protocollo-14-marzo-sicurezza-lavoratori-covid-19-2020.pdf.
[9] Referable at the following link: https://www.inail.it/cs/internet/docs/alg-pubbl-rimodulazione-contenimento-covid19-sicurezza-lavoro.pdf.
[10] Interesting is the proposal in the Technical Document, on p. 15, to introduce "exceptional health surveillance" that would be carried out on workers with age >55 years or on workers below this age but who believe they fall, due to pathological conditions, in this condition also through an on-demand visit. In the absence of adequate immunization coverage (using serological tests of established validity), a judgment of "temporary unfitness" or limitations of fitness for an appropriate period should be carefully considered, with careful re-evaluation at the expiration of the same."
[11] Read, on p. 15: "the competent physician, upon presentation of certification of negative swab in accordance with the prescribed procedures and issued by the competent territorial prevention department, shall conduct the "medical examination prior to resumption of work, following absence for health reasons of more than sixty continuous days, in order to verify fitness for the task".
[12] Followed, on May 22, by the Instructions for the implementation of measures to contain SARS-CoV-2 infection through procedures for sanitizing non-sanitary facilities (surfaces, indoor environments) and clothing.
[13] See: http://www.salute.gov.it/portale/nuovocoronavirus/archivioNormativaNuovoCoronavirus.jsp.
[14] Operational guidance on the activities of the competent physician in the context of measures to combat and contain the spread of the SARS-CoV-2 virus in the workplace and the community, p. 7.
[15] By such are meant (on p. 8): the preventive medical examination, including pre-employment; the medical examination at the worker's request; the medical examination at the time of a change of job; and the medical examination prior to resuming work after sickness absence of more than 60 continuous days.
[16] Operational guidance on the activities of the competent physician in the context of measures to combat and contain the spread of the SARS-CoV-2 virus in the workplace and the community, p. 8.
[17] Calling attention, moreover, to the personal responsibility of each worker according to the provisions of Article 20 paragraph 1 of Legislative Decree 81/2008, as amended "Every worker must take care of his own health and safety and that of other persons present in the workplace, on whom the effects of his actions or omissions fall, in accordance with his training, instructions and means provided by the employer." (see p. 8 of the Operational Guidelines on the subject).
In fact (on p. 9): "With regard to the progressive reintegration of workers after COVID-19 infection, the scientific literature points out that those who have become ill and have manifested pneumonia or severe acute respiratory infection may have reduced lung capacity following the illness (even up to 20-30% of lung function) with possible need to undergo courses of respiratory physiotherapy. An even more complex situation is that of individuals who have been admitted to intensive care, as they may continue to experience relevant complaints described in the literature, the presence of which requires special attention for the purpose of reintegration into work."
[18] On p. 9, again, it states, "Serological testing, according to WHO guidance, cannot replace molecular diagnostic swab testing, however, it can provide epidemiological data regarding viral circulation in the population, including in the working population."
[19] See, in this regard, the faq of the Guarantor for the Protection of Personal Data, which identifies the figure of the competent doctor as the only person entitled to manage data referring to the vaccination of employees (see www.gdpr.it/coronavirus/faq).
[20] May we cite, in this regard, Raspa S., "The organization of work in companies: emotion and motivation," in "LaFrecciaWeb" (https://www.lafrecciaweb.it/2019/09/10/lorganizzazione-del-lavoro-nelle-aziende-emozione-e-motivazione/ ).
[21] Operational guidance on the activities of the competent physician in the context of measures to combat and contain the spread of the SARS-CoV-2 virus in the workplace and the community of April 24, 2020.