La malattia professionale dello smart worker tra determinazione degli obblighi di sicurezza e accertamento del nesso causale

Abstract

If it is true that Art. 2087 of the Italian Civil Code lends itself to an evolutionary interpretation that updates the employer’s duties, the increasing permeability between life and work enhances the difficulty of identifying the level of diligence required of the employer in determining measures aimed at preventing risks in work carried out in a manner that escapes control over the worker’s cooperation, with obvious consequences on the level of fault in supervising. In the case of occupational diseases, the profile of the causal relationship between the wrongful behavior and the harmful event is particularly problematic: the civil law rule of the preponderance of evidence seems to crumble, in parallel with the loss of structure of those spatio-temporal coordinates that have very little evident relevance now. Given these premises, it is intended to verify whether the currently applicable legal framework is susceptible to any renewal, in order to restore certainty to a confused picture in which the excessive objectification of the employer’s liability could push the boundaries into the realm of obligations of results and the burden of proving the conformity of the degree of diligence to the standards of Art. 2087 of the Civil Code, especially in the case of so-called unnamed safety measures, could be decidedly burdensome.