It took only 150 minutes of the ASSINEWS Web Seminar dedicated to “Employer responsibility for contagion damage and the protection of those who fall ill” to answer the most pressing questions, definitively clarifying all the legal doubts accumulated in recent months
Moderated by Prof. Giulio Ponzanelli , the speakers, among the top experts in the sector, managed to provide answers: clear, precise and punctual. Starting from the nature of the contagion from Covid19 , that the Law Decree n. 18 of 2020 preferred to frame as an injury and not as an infectious disease , the truth was finally able to be restored. Reassuring those who had immediately launched unnecessary alarmism, above all, with respect to the responsibility of employers who had literally panicked companies and entrepreneurs, believing that: «The simple extension of the coverage guaranteed by INAIL would give rise to a new employer liability ipso jure. »
The Councilor of Cassation
A few simple words pronounced by the Councilor of Cassation Dr. Marco Rossetti were enough to draw the line and clarify that: “The attribution of a right” such as that which “extended INAIL’s insurance coverage to contagion damage” does not automatically «Arise a liability» for the employer.
In fact, in fact, “the attribution of a right gives rise to a legal relationship between the obliged and the creditor . In this case between the INAIL and the worker who gets sick. But this has absolutely nothing to do with employer responsibility which obeys completely different criteria » . Those that have always been recognized: negligent conduct by the employer, damage by the employee and a connection that causes the conduct of the employer to link to the damage suffered by the worker.
“The civilization of a people is measured by the number of laws that a country does not need”
Yet to avoid any civil and criminal employer responsibilities , which had been hindered in the aftermath of the issuance of the Decree, it was also thought to shore it up through: laws, decrees and circulars how much, instead, it would have been enough to draw on the general principles of the current I judge if not even only in the articles of the Civil Code. The typical regulatory redundancy of our country that, especially during the health emergency, has continued to multiply legislative, implementation and administrative acts is such a legal aberration that pushes the enlightened jurist to close with a high quote: «The civilization of a people it is measured by the number of laws of which a country it does n’t need. “
Legal shield to protect health
By coordinating the interventions, Prof. Giulio Ponzanelli intervened on the issue, politically and legally, very hot of the legal shield proposed to protect health . Specifying that the attention on any responsibilities will inevitably focus on the structures , for the decisions taken during the emergency management. And not on individual doctors , guilty only of having had to face urgent cases in full emergency. Position already assessed by consolidated jurisprudential guidelines.
In reference also Dr. Alessandro De Felice , President of ANRA , the National Association of Risk Managers and Corporate Insurance Managers has warned about the possible increase in risks for the directors of large companies, proposing to change the philosophy regarding risk analysis. Giving more importance to the severity of the event rather than the probability of this happening.
The ontological essence of the nature of contagion
However, if due to the obvious legal and economic repercussions it has finally been possible to provide employers, administrators and insurers with a clear answer on the responsibilities, divisions remain on the ontological essence of the nature of the contagion . Because despite the resistance of forensic medicine, dr. Patrizio Rossi , INAIL National Health Superintendent , claims the regulatory choice of injury , also on the basis of historical precedents that have always classified infectious diseases such as Charcoal in 1935.
As a medical examiner, Dr. Luigi Mastroroberto is convinced, however, that the contagion from COVID19 can only be defined as an occupational disease because it is infectious . Considering also that accident insurance policies sold by private insurance companies usually do not provide for infections . Although clearly every insurance policy includes all those cases provided for by the general conditions accepted by the contractor, without the law being able in any way to intervene and influence, above all, subsequently the stipulation of the contract. Surely you cannot reflect on the accident policies as decided for INAIL by the second paragraph of theart. 42 of the law decree n. 18 of 2020: « In the ascertained cases of coronavirus infection (SARS-CoV-2) during work, the certifying doctor draws up the usual accident certificate and sends it electronically to INAIL» .
The relationship, and any consequences, between the qualification of INAIL accident with respect to private accident policies must, however, be definitively clarified. The market asked for it through the voice of Dr. Giovanna Gigliotti , CEO of UniSalute Spa , recalling that, on the other hand, the RCO policy is always operative if the employer’s responsibility is recognized, in case of contagion. Positions also taken up by Dr. Umberto Guidoni , Business Director of ANIA , the National Association of Insurance Companies, because they are necessary to provide greater stability to the insurance sector which in this period, more than ever, needs certainties to guarantee assistance and safety to its customers .