Reply 2/2022: The Advance Tax Commission clarifies that health surveillance of employees falls under Article 41 of Legislative Decree No. 81 of April 9th, 2008 – Consolidated Occupational Safety Act.
The Ministry of Labour and Social Policy in its reply No. 2 of October, 26th 2022 deals with the obligation of health surveillance in order to clarify whether the employer’s obligations towards the employee are exclusively connected with the application of the suitability opinion provided by the competent doctor.
The question of the Advance Tax No. 2 of October 26th, 2022
In the question posed by the Italian Lazio Region – Regional Health and Social Policy Directorate, the Ministry was asked whether:
- the obligation of health surveillance is it to be strictly linked to the provisions of Article 41 of Legislative Decree 81/2008, which regulates it, or whether
- the employer (pursuant to Article 18(1)(c)) should take into account, in general, the health and safety conditions of workers and their ability to perform specific tasks, ensuring that health surveillance is planned according to the risks assessed for the specific task and not limited to the provisions of Article 41.
Regulatory background: Legislative Decree 81/2008 or the Consolidation Act on Safety at Work
As stated in Legislative Decree 81/2008, the Consolidation Act on Occupational Safety, health surveillance serves to protect the health and safety of workers.
The definition of ‘health surveillance’ is found in Article 2(1)(m), which defines it as:
“set of medical acts, aimed at protecting the state of health and safety of workers, in relation to the working environment, occupational risk factors and the way in which work is performed”.
The Consolidation Act also provides clarification of the employer’s obligations. Specifically, Article 18(1)(a) gives employers and managers the obligation
”to appoint the competent doctor to carry out health surveillance”
in the cases provided for in Legislative Decree No. 81 of April, 9th 2008. In addition, the employer must ensure that employees do not perform particular tasks without a doctor’s suitability opinion (Art. 18(1)(c) of Legislative Decree 81/2008).
Finally, with regard to the obligations of workers and competent doctors, the Consolidation Act states that medical examinations are compulsory for workers and must be carried out by the competent doctor, appointed by the employer (Article 20(2)(i)). The obligations of the competent doctor are laid down in Article 25(1)(a), according to which:
“the competent doctor collaborates with the employer and with the prevention and protection service in the assessment of risks, also for the purposes of planning, where necessary, health surveillance, in preparation of the implementation of measures for the protection of the health and psycho-physical integrity of workers”.
Subparagraph b) of the same paragraph provides that “the competent doctor shall plan and carry out the health surveillance referred to in Article 41 by means of health protocols defined according to the specific risks and taking into account the most advanced scientific guidelines”.
The Commission’s reply
On the basis of the complex and articulated legislation in force, health surveillance must be brought within the scope of Article 41 of Legislative Decree No. 81/2008, and accordingly the employer’s obligations are connected exclusively with the application of the suitability opinion expressed by the doctor and any prescriptions or limitations.
Article 41 of Legislative Decree No. 81 of April 9th, 2008, entitled ‘Health Surveillance‘, states in paragraph 1 that “Health surveillance is carried out by the competent doctor:
- in the cases provided for by the regulations in force, the indications provided by the Advisory Commission referred to in Article 6;
- if the worker requests it and it is considered by the competent doctor to be work-related risks”.
Besides, health surveillance includes a preventive medical examination “to ascertain the absence of contraindications to the work for which the workers are destined in order to assess their suitability for the specific task” and a periodic medical examination ‘”to check the workers’ state of health and express the judgement of suitability for the specific task. The periodicity of such assessments, if not provided for in the relevant regulations, is set, as a rule, at once a year” (Art. 41(2)).
This judgement may be:
- partial, temporary or permanent eligibility, with prescriptions or limitations;
- temporary ineligibility
- permanent ineligibility
As clarified by the Ministry of Labour, it is precisely to the application of these judgments that the obligations of employers under Article 18 of the Consolidation Act are linked. The employer, when assigning tasks to employees, may not take into account their health and safety conditions and ability to perform a given task, ensuring planned health surveillance according to the risks assessed for the individual task, without relying on the doctor’s judgement.
The Ministry’s Commission for Advance Tax on Occupational Health and Safety replied to the question posed in Reply 2/2022, indicating that the above-mentioned provisions lay down precise obligations for employers and competent doctors, by virtue of their specific position of guarantee for the purposes of protecting health and safety in the workplace, and that health surveillance must be brought under the scope of the aforementioned Article No. 41.