Given the pandemic situation caused by the new coronavirus (COVID-19), companies can be forced to comply with exceptional prevention measures ordered by public authorities in order to prevent the new coronavirus from spreading, and noncompliance with such measures can trigger criminal liability.
Art. 352 of the Criminal Code provides that noncompliance with measures ordered to prevent or combat the spreading of contagious diseases constitutes the criminal offence hampering disease control, which is punishable by a criminal fine or imprisonment, regardless of whether the noncompliance was intentional (punishable by a criminal fine or imprisonment of six months to two years) or negligent/committed with basic intent (punishable by a criminal fine or imprisonment from one to six months).
In order to better understand the situations in which companies could be subject to a criminal fine in this context, the following aspects need to be considered:
1. The offence is subject to the existence of specific measures ordered by public authorities in order to prevent or combat infection with the new coronavirus. In order to trigger a company’s potential criminal liability, such measures must be applicable to specific companies, i.e. meant to be implemented by specific companies.
Until the present moment, the measures undertaken by the authorities include, for example, retailers’ obligation to implement measures in order to avoid queues or the obligation of companies with more than 99 employees to establish different work schedules for their employees in order to prevent crowding in public transportation.
However, depending on the evolution of this pandemic situation, companies can be obliged to implement several other measures regarding their business operations/employees (including temporarily shutting down one or more business units or even completely shutting down their business operations), and noncompliance with such measures could trigger criminal liability of the company itself.
2. The offence is subject to a specific result, which means that noncompliance with a measure ordered to prevent or combat infection with the new coronavirus constitutes an offence only if this noncompliance caused the COVID-19 infection to spread, i.e. only if at least one additional person has been infected as a result of the noncompliance. It is important to note that in this specific case, i.e. when noncompliance with the preventive measure is committed by a company, it is harder to confirm such a result, but not impossible. In other words, if epidemiologic investigations can rather easily establish the contacts of a person diagnosed with COVID-19, it is harder to establish that a person was infected as a result of a company’s noncompliance with a specific prevention measure. However, in order to be on the safe side, companies are advised to (i) comply with the de minimis prevention measures ordered by the authorities and (ii) implement additional measures for the safety of their employees if necessary.
3. Depending on the evolution of the infection in those persons who have been infected as a result of noncompliance with ordered prevention measures, additional offences such as bodily harm, bodily harm with basic intent, etc. could be cited.
4. According to civil law, persons to whom the new coronavirus has spread as a result of another party’s noncompliance with ordered prevention measures can join the resulting criminal cases as civil parties and request damages for the adverse circumstances suffered. Considering the fact that the new coronavirus can lead to the death of vulnerable persons, damages sought could be very high.
Considering these aspects, as well as the speed with which the new coronavirus is spreading in Romania, legal entities must inform themselves of the prevention measures ordered by the authorities and comply with these measures in order to do everything possible to prevent people from becoming infected with this new virus and to avoid the potential penalties provided by law.