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ISSN 2611-8858


Labour Health and Security Law

Health and safety in the workplace in times of pandemic

The SARS-CoV-2 pandemic had dramatic effects on every aspect of social life, including work in public and private organizations. Among the stratified and flooding anti-contagion rules issued – and constantly updated – both at a national and local level, as well as at a general and sector level, a relevant role is played by governa- tive provisions and agreed protocols aimed at containing the infection risk in the workplace. This paper tries to overcome, in the first place, doubts and different views on the relationship between Covid-19 anti-contagion measures in the workplace and the legal framework on health and safety in the workplace outlined by Legislative Decree no. 81/2008, proposing a systemic connection. Furthermore, the paper explores the potential profiles of criminal liability of individuals and corporations under art. 25-septies of the Legislative Decree no. 231/2001, highlighting – inter alia – the limits of negligence-based result crimes in assessing the causal link between conta- gion and injuries/death of the victim, as well as the rationale and the limits of art. 29-bis of the Law Decree no. 23/2020, converted into Law no. 40/2020, having the aim to reduce the area of ‘generic’ negligence. The frantic lawmaking of the past months, now seen as eccentric and driven by the pandemic emergency, could nevertheless anticipate – for certain aspects – the future of criminal law related to safety in the workplace.

Phenomenology of Criminal Negligence in Labour Law

This article underlines the suitability of a differentiated approach to criminal negligence. In doing so, the author draws heavily on legal literature advocating the practical and theoretical development of models of criminal liability based on the different contexts of risk and liability. Within this framework, particular emphasis is placed on the field of labour law, a true "laboratory" of experimentation and study, in the context of which numerous patterns of criminal negligence can be observed. In light of this "multiplicity", the discussion of the unintentional model of criminal liability requires us to take issue with the presumed "completeness" of the unitary approach, which appears to be deficient in both cognitive and descriptive purposes. To summarize, instead of speaking of negligence we should speak of... negligences. This article, therefore, sets out to shed light on the various patterns of criminal negligence in the field of labour health and security law, by critically evaluating how they affect, in terms of “distortion”, the proper implementation of the legal criteria ascribing subjective criminal liability.