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Reply 1/2023 on health surveillance when working from home

The Ministry of Labour clarifies whether or not a competent doctor can be elected in relation to smart working workers.

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With reply No 1/2023, Ministry of Labour provided clarifications on the possibility to engage a competent doctor for employees working from home.

Employer’s obligations about health and safety at work

Minestry of Labour already provided some other information about health sourveillance in October 2022. According to Law Decree 81/2008 on health and safety at work, the General Federation of Italian Commerce and Tourism (Confcommercio – Imprese per l’Italia) claimed a request for a consultation concerning

“the possibility to continue, for the employer […], despite (the) smart working, […] health sourveillance activities provided for in Law Decree No.81,  Article 41 of April, 8th 2008”.

Within the meaning of Decree 81/2008, Article 18, the employer is obliged to “engage the competent doctor who carries out the health surveillance”.

Through the Reply No 1/2023, the opinion of Commission for requests on occupational safety. Specifically, with regards to the opportunity, for the employer, to engage different competent doctors, who can join those already elected in the principal workplace, and being  geographically close to the workplace where employees are performing their smart working.

Necessary definitions and obligations of the competent doctor

As stated in Law Decree No. 81, Article 2 of April, 9th 2008, the competent doctor is that professional figure

“having one of the qualifications and educational and professional requirements […], cooperating […] with the employer in order to evaluate risks and being engaged by the employer to carry out health seurveillance […]”

In addition, health surveillance is defined as the set of all health measures taken in order to protect the health and safety status of workers, in relation to the work environment and related occupational risk factors and the manner in which the work is carried out.

As stated in the same Law Decree, Article 3, measures stipulated therein find their scope of application in all employees who carry out their professional activities on a continuous basis by means of remote work modes. In fact, the employer’s obligation to implement the company’s occupational health and safety policies also applies to the said category of workers.

These company policies also include the implementation by the employer, employee representatives and competent authorities of the same regulations regarding access to and control of workplaces.

In fact, such surveillance can also be carried out if the service is performed remotely. In the specific case at one’s home, subject to prior notice and consent of the remote worker in question.

Reply No. 1/2023 and related Commission decision

The current legislative decree, based on Article 39, enactes the possibility of appointing more than one occupational health and safety doctor only in specific cases, such as when:

  • The company is divided into several production units;
  • These are groups of enterprises;
  • The doctor is required and necessary in relation to the risk assessment carried out.

By virtue of the above-mentioned cases, the designation of different competent doctors on a territorial basis, distinguished according to the locations where smart working is carried out, does not fall within the case for which the Commission considers the designation of several competent figures to be valid and applicable.

Thus, in the case of smart working, the employer’s obligation to ensure the health and safety of the employee and to provide

“to the worker and the workers’ safety representative, at least annually, a written notice in which the general and specific risks associated with the particular mode of performance of the employment relationship are identified.”

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Regulatory Framework

Question n. 1/2023

Reference (Italian only)

D. Lgs. 81/2008

Reference (Italian only)

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