Assessment and valorization of remaining skills. New protection provisions and the synergies necessary for effective reintegration

C. Frascheri | CISL Salute e Sicurezza sul Lavoro, Roma, Italy

Introduction. The answer to question no. 15 in the “Professional guidance document for occupational physicians: collaboration in risk assessment” (SIML 2023) concerning the role of the occupational physician, in collaboration with the employer, with regard to the “necessary” indications - as far as they are competent - on the subject of the reintegration into work of employees who have been judged unfit or, even more so, in the case of judgments of limited fitness.
These clarifications comply not only with what can be inferred from the combined provisions of the relevant regulations, as established by D.I.G.S. 81 of 2008, as amended, but in particular of what has been regulated for over ten years (it was 2013 when Article 3 of DIGS 216 of 2003 was amended, under EU constraints, with the addition of a paragraph 3-bis) on the subject of reasonable accommodations. This obligation, we should remember, is incumbent on the employer and is no longer limited to cases of high-percentage disability, chronic conditions, and following an assessment of mere possibility, given the situation.
However, in the face of such a consolidated regulatory scenario, which undoubtedly includes (according to the majority of case law) the duty of the competent doctor, even in the absence of any involvement on the part of the employer (who does not respect the roles) in outlining the preventive measures and organizational choices to be implemented, to take proactive action, with critical observations and/or constructive and targeted proposals, in light of field tests, unfortunately, reality seems to contradict all this.
Objectives. From the initial results obtained from interviews/questionnaires conducted with approximately 450 transplant recipients, as a central phase of the BRiC INAIL ID 25:2022 Project (currently underway) with the explanatory title: “The transplant recipient at work: the role of the competent doctor and health surveillance for the purposes of work and social reintegration,” in the section relating to the survey focused on aspects more specifically related to the management of transplant recipients returning to work, in terms of health and safety at work, the picture that emerges is not encouraging in some respects.
In fact, having a clear sense of this from various signals, which are truthful because they have been gathered in the workplace, the design of a research project that includes this survey is proving to be extremely useful.
Methods. For the sake of brevity, extrapolating only a few extremely indicative data points, collected from a scientifically reliable sample, albeit referring to a small and specific population, such as that of transplant recipients (heart, liver, or kidney) of working age, scenarios emerge that undoubtedly require some reflection, starting with the gap between theory (authoritative and collective statements on the procedures to be implemented and on actions aimed at affirming the role of “competence”) and reality (which seems to contradict what has been stated with the facts).
Upon returning to work, while the majority of respondents (transplant recipients) confirmed that they had resumed their duties or, when accompanied by prescriptions, full compliance with these (recognizing the role of the person in charge as the main architect of this guarantee of protection), it is with regard to the other figures involved in corporate prevention, in particular the employer and the competent doctor, that the most extensive criticism and reports of lack of targeted activity were found.
In almost all of the statements made by respondents (supported by the assisted completion of questionnaires), it emerged that no changes/updates to the risk assessment document had been made and, in response to this (despite the change in responsibility from the employer to the competent doctor), no changes had been made to the health protocol.
Furthermore, among the figures most absent in the process of returning to work and job placement for transplant recipients, it was precisely the competent doctor who, in most cases, limited himself to meeting with the transplant recipient only during the preparation of any prescription.
Results and Conclusion. It is important to note that over the last twelve months, among the various measures that have been introduced in the form of additions, amendments, or new provisions, with the primary objective of increasing the health and safety protections of employees, some have concerned the role of the competent doctor and health surveillance.
Thus, the amendments introduced by Conversion Law No. 85 of July 3, 2023 (formerly Decree Law No. 48 of May 4, 2023), aimed at amending the provisions of Article 18, paragraph 1, letter a) of Legislative Decree No. 81 of 2008, concerning the extension of the circumstances under which the employer (and the manager) must appoint a competent doctor; 81 of 2008 s.m., concerning the extension of the circumstances under which the employer (and the manager) must appoint a competent doctor; as well as the new provisions of the recent Legislative Decree No. 29 of March 15, 2024, through the provisions of Article 5 which, although aimed at the issue of the aging of the working population, has reintroduced risk assessment and health surveillance as central issues; finally, based on the date of issue (given that publication has been awaited for weeks) and certainly not of lesser importance, the provisions introduced in the list of criteria for the allocation of additional credits for the purpose of obtaining and confirming the credit license (a tool, as is well known, to create a system for the qualification of companies, for now, only those operating on temporary or mobile construction sites), which includes at least two visits to the construction site by the competent doctor, accompanied by the RLS/RLST.
From this scenario of innovative legislation, it is quite clear that, in the face of a growing and constant phenomenon not only of an aging working population (with Italy in first place with Japan for the oldest workforce), but also of an equally worrying parallel phenomenon of a lack of generational change, the issue of re-employment of workers with residual abilities (as defined by the UN, such as long-term physical, mental, intellectual, or sensory impairments) is becoming/will become increasingly central. This requires the commitment of all those involved in occupational health and safety, within their respective areas of competence, starting with the employer and the occupational physician, to identify measures and interventions that can best combine the continuation of work with the guarantee of greater protection for employees, especially those who are frail, those with limitations, and those who are unfit for their original job.
To this end, within a framework of cross-cutting and diversified commitments aimed at promoting greater attention to the process of reasonable accommodation, relying on a legislative framework that guarantees protection and the elimination of all forms of discrimination, on funding lines regulated by local and national policies (such as those allocated by the Regions and INAIL), it is more appropriate than ever to outline procedures for action in order to promote concrete and effective interventions, not limited to mere theoretical statements.
For this reason, one of the expected results of the research-action related to the BRiC INAIL ID 25:2022 Project is to view the creation of an operational guide that outlines organizational and management solutions appropriate to different work situations and models of work reintegration interventions that enhance the residual abilities of individuals, with a view to social inclusion, focusing on the role of the competent doctor, in the broader context of the performance of their duties, which has become increasingly crucial.
At the same time, considering it necessary and urgent to continue to raise awareness among employees of their rights in this area, an information product will be developed (in the most effective forms for this purpose) with the aim of making everyone more aware of the protections currently guaranteed.