Smart working has exponentially increased due to the Covid-19 health emergency that started in 2020.
The advantages and potential of this work method, forcibly experienced at a mass level during the pandemic, oriented many companies towards a new “hybrid” organisation that combines in-person and remote work.
Many companies have applied a more flexible organisation that allows workers to choose when to work in-person or remotely, making their space and time boundaries more fluid.
Considering the complex emergent regulatory framework, proper smart working conduct in the post-pandemic era becomes crucial. It needs to be understood that “smart” working does not mean working “from home.” Smart working, as defined by Chapter II of Law no. 81/2017 is a specific and flexible way of organising employment, independent of the workplace and time, and established by agreement between the parties. Under Art. 18, paragraph 1 of the above law, the employee works partly inside the company’s premises and partly outside, without a fixed location.
Smart working requires a fixed term or open-ended agreement between the employer and employee to regulate essential aspects, such as: (i) the forms of exercise of the employer’s executive and control powers; (ii) the worker’s rest time and the technical and organisational measures necessary to ensure the worker’s right to disconnection from the technological work tools; (iii) any conduct that may be sanctioned at a disciplinary level and, (iv) any right to lifelong learning.
Last year’s emergency legislation has led to a partial derogation from the ordinary rules by introducing a “simplified” method to access smart working. Under this method, smart working can be implemented without an individual worker agreement by sending an electronic communication to the Ministry of Labour and Social Policy with the workers’ names and smart working termination date.
The regulations include obligations to provide information on occupational health and safety risks under art. 22 of Law no. 81/2017 which may be fulfilled electronically. Currently, private employers can use simplified smart working until 31 December 2021 under Law no. 87/2021 converting into law Decree-Law no. 52/2021 ( Reopening Decree).
Please note that the “emergency” smart working regulations have led to a derogation – which is close to expiry. This derogation applies to the agreement between the parties, and does mean losing the need to regulate and guarantee a series of aspects that are naturally governed in the agreement. Specifically these include “work performance”, “forms of exercise of the employer’s executive power, “tools used by the worker”; “worker’s rest time”; “technical and organisational measures necessary to ensure the worker’s disconnection from the work technological tools”; “right to lifelong learning”; “exercise of the employer’s control power”; “conduct connected with the work performance…, which give rise to the application of disciplinary sanctions” (art. 18, 19, 20 and 21 L no. 81/2017).
Continue reading the full version published on Il Quotidiano del Lavoro of Il Sole 24 Ore.