The National Employment Inspectorate (”INL”), with note no. 9550 of 6 September 2022 set the new provisions of Legislative Decree no. 105 of 30 June 2022, (the “Decree“) on leave and time off and other measures for the protection of caregivers.
The Decree, also known as the “Work-Life Balance Decree” entered into force on 13 August 2022, implemented Directive (EU) no. 2019/1158 of the European Parliament and Council on the work-life balance for parents and caregivers.
The INL note summarises the main changes introduced by the Decree for the individual measures.
Compared to the previous regulations, the Decree introduced Art. 27-bis of Legislative Decree no. 151, of 26 March 2001 ( Consolidated Law supporting maternity and paternity – “TU”), on compulsory paternity leave. It established that the working father (including adoptive or foster) must abstain from work for ten working days, not divisible into hours from the two months preceding the presumed date of birth and within the following five months, and can be used on a non-continuous basis.
The leave is doubled to 20 days for multiple births.
This leave is in addition to the alternative paternity leave, governed by art. 28 of the Consolidated Law, to which the father is entitled in the event of the mother death, serious infirmity or abandonment, and when there is the father exclusive custody of the child, as an alternative to maternity leave.
The leave entitles the father to a daily allowance equal to their entire salary.
The INL note stated that during the paternity leave (mandatory and alternative) the working father cannot be dismissed, for the leave duration and until the child is one year old. In resignation cases, during the period when dismissal is prohibited, the father who has taken paternity leave is entitled to the allowances under the law and contractual provisions for dismissal (such as notice allowance and NASPI) and is not required to give notice.
The Decree amended paragraph 1 of Art. 34 of the Consolidated Law and established that until the twelfth year (and not the sixth) of the child’s life (or from the child’s entry into the family for adoption or fostering cases), the mother and father are entitled to a compensable period of three months, non-transferable to the other parent.
Both parents are individually entitled to a further indemnifiable period of three months, for a maximum indemnifiable period taken collectively of nine months (and not six).
The INL note stated that the parents’ maximum limits under Art. 32 of the Consolidated Law were unchanged.
The single parent (including those having sole custody) is granted 11 months (and not ten) of continuous or non-continuous parental leave, of which nine months (and not six) can be compensated at 30 per cent of the salary. In sole custody cases, the other parent loses the right to the unused leave.
INL stated that, if the parental leave is used continuously, this includes any public holidays. This applies to non-continuous leave, where the different periods of absence are not alternating with returning to work.
INL pointed out that parental leave is counted in the seniority and does not entail a reduction of holidays, rest, thirteenth month salary or Christmas bonus, except for accessory remuneration connected to actual workplace presence. This is without prejudice to more favourable collective bargaining provisions.
Based on the new provisions introduced by the Decree, in priority order, the cohabiting spouse is treated in the same way as the cohabiting partner under civil partnership and the de facto cohabitant of the disabled person in a serious condition.
Leave may be taken within 30 days (and not 60) from the application, and cohabitation may be established after submitting the application, provided that it is guaranteed throughout the leave.
With the new provisions introduced by the Decree, the “sole caregiver” principle is superseded. The principle under the previous system established that no more than one worker could be granted leave for assistance to the same severely disabled person. This excluded parents for whom this option was always available.
As a result of the changes introduced by the Decree, priority was given to the change of employment contracts from full-time to part-time. This applies to oncological or serious chronic degenerative illnesses affecting the spouse, civil or de facto cohabiting partner.
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