On 5 January 2022, the Council of Ministers, based on a proposal from the Prime Minister and Minister of Health, approved a law-decree that introduces “urgent measures for dealing with the COVID-19 emergency, in particular in workplaces, schools and institutes of higher learning”. The decree-law was published in the Official Gazette last 7 January and became effective 8 January.
According to what the Council of Ministers declared through its own press release, the new measures were aimed at “slowing the growth curve of cases related to the pandemic and provide greater protection to those categories which have greater exposure and greater risk of hospitalisation”.
The introduced measures include the extension from 8 January 2022 to next 15 June, of the vaccine obligation for Italian citizens and other Member State citizens resident in Italy as well as other non-EU citizens or persons in violation of the laws regarding entry into and residency in Italy who are fifty years old. The obligation in question “does not apply in cases of a verified health risk in relation to specific documented clinical conditions, attested by the patient’s primary care physician or vaccinating physician, in relation to the Ministry of Health’s circular letters concerning exemption to the anti SARS-Cov-2 vaccination; in such cases the vaccine can be omitted or deferred”.
Furthermore, according to the Decree, as of next 15 February and until next 15 June, all workers with an age equal to or greater than 50, must possess and show a Covid-19 green pass certification of vaccination or recovery (so-called “reinforced Green Pass”) to access job sites.
For the periods in which the vaccination is omitted or deferred, the employer will assign the worker in question to duties, even different, with no decrease in remuneration, in order to prevent spread of cases.
Moreover, the Decree in question states, in art. 3, that “the employer (editor’s note regardless of the size requirement) can suspend the worker for the duration corresponding to that of the employment contract stipulated for the substitution, but for a period not greater than ten work days, renewable until the aforesaid tern of 31 March 2022, without any disciplinary consequences and with the right of the suspended worker to keep his/her job”.
The control procedures will remain those currently in use, the workers who communicate that they are not in possession of a reinforced Green Pass or do not possess one at the time of access, shall be considered unjustified absences. They shall have the right to keep their job without any disciplinary consequence until presentation of the same, and by 15 June 2022.
Workers without a reinforced Green Pass shall be denied access to the workplace. Violation of this ban exposes the worker to a fine from 600 euro to 1500 euro, without prejudice to the disciplinary consequences according to the respective sector rules. The fine from 400 euro to 1,000 euro for employers for failure to comply with the control measures remains unchanged.
Other related insights:
With message no. 4027 of 18 November 2021, INPS published on its institutional website the following 19 November a clarification stating that the decree law no. 146 of 21 October 2021, fiscally linked to the 2022 Budget law, changed the regulations on protections envisaged during the Covid-19 healthcare emergency, inter alia, for quarantined workers. The legislation states that: classifying as an illness the period of time that a private sector worker passes in quarantine with active-monitoring or voluntary homestay with active monitoring is granted until “31 December 2021” based on a specific allocation. To date such classification has not been refinanced for 2022. This means that starting from 1 January 2022, unless there are any and future provisions, private sector workers who cannot perform their jobs using an agile procedure (because such procedure would be incompatible with the expected employment characteristics) and are forced to comply with a period of quarantine due to close contact with a confirmed Covid case would not have the right to compensation paid by INPS. The same INPS in its message explained that “benefits will continue to be granted to private worker jobs entitled to sick leave benefits, according to the normal procedures, even for events occurring in 2021, in chronological order, as required by law”.
Other related insights:
The Court of Asti, with the order of 5 January 2022, ruled that the quarantine period (as per art. 26, paragraph 1, Decree Law 18/2020 applicable ratione temporis) or voluntary homestay is not valid for calculating the protection period, not only vis-a-vis subjects who have had close contact with confirmed cases, but also regarding subjects who end up positive for Covid-19. This is because it is impossible by law to perform the job regardless of the presence of symptoms or not linked to the pathology.
In the case in question, the worker, following contact with a colleague turned out to be positive to Covid-19, she was first put in quarantine and later, following a positive swab result, in voluntary homestay. The employer dismissed her for exceeding the protected period according to the sector national collective bargaining agreement.
The worker challenged the dismissal in court, claiming that:
In contrast with what the employee sustained, the employer sustained that the protection included in art. 26, paragraph 1, of Degree Law no. 18/2020 only refers to the quarantine periods with active monitoring or voluntary homestay with active monitoring ordered by the authority and not also the case in which the worker had caught the Covid-19 infection.
According to the Judge assigned to the case, during the protected period the days of absence due to quarantine or voluntary homestay provided by the law to fight the spread of the virus should have not have been calculated.
The Judge – in citing art. 26, paragraph 1, of Decree Law no. 18/2020 as amended by subsequent legislative interventions that extended the timeframe – underlined how such provision was introduced with the aim of protecting workers forced to be absent from work because subject to quarantine or voluntary homestay measures equating such absence to illness and excluding it from the calculation for the protected period.
In light of the above, according to the Court, in the case in hand, the days of absence required for quarantine and those ordered for homestay due to testing such worker for the virus should not have been calculated for the purpose of exceeding the protected period.
The sentence reads that “the ratio of the law is not to have the worker suffer the consequences for absences from work due to prevention and containment measures provided by law and undertaken with measure of the authorities to limit the spread of the Covid-19 virus, in all cases of possible or clear infection from the virus and regardless of the condition of the illness that – as already known – may exist with or without the infection (asymptomatic positive cases)” It later states “even in the case of infection with illness, what really separates Covid-19 from other illnesses is the impossibility, authoritatively imposed, for the worker to perform their job and for the employer to receive it in legally and administratively expected times, times that – once again – are regardless of the development of the illness but depend on the mere positiveness or negativeness of the virus”.
Based on these considerations the Court granted the worker’s appeal, cancelling the dismissal and (i) reinstatement in her job as well as (ii) payment of damages equal to the last overall remuneration from the day of dismissal until that of effective reinstatement, and in any case not greater than 12 months salary of overall remuneration, as well as interest and revaluation as per law as well as payment of welfare and social security contributions.
Other related insights:
On 24 December 2021, Decree Law 221, entitled “Extension of the state of national emergency and further measures to contain the spread of the COVID-19 epidemic” (the “Decree“), was published in the Official Gazette, effective from 25 December.
Because of the health risk associated with the spread of COVID-19, the state of emergency declared by the Council of Ministers on 31 January 2020 was extended to 31 March 2022.
As a result, specific provisions in the labour field to contain the COVID19 virus have been extended to that date.
Green Pass in the workplace
Until 31 March 2022, public and private sector workers are required to hold and display a Green Pass when entering the workplace .
Therefore,
The basic Green Pass, i.e. the certificate issued following a swab (molecular or antigenic), vaccination or recovery from Covid, is sufficient. Workers exempt from the vaccination campaign continue to be excluded.
The Green Pass is required to participate in in-person training courses.
Simplified remote working procedure
The simplified procedure for reporting remote working has been extended to 31 March 2022. Until that date, the individual agreement required by the ordinary regulations of Law 81/2017 is unnecessary, and the electronic and massive notification to the Ministry of Labour is sufficient.
Health monitoring
The health monitoring obligation for workers who are more exposed to the risk of contagion due to age, immunosuppression and previous Covid-19 infection or other illnesses that make them particularly vulnerable remains confirmed. The company or INAIL physician can ascertain the suitability of such workers for the task to which they are assigned. Unsuitability for the job does not justify employment termination by the employer.
Work performance of vulnerable persons
Until 22 February, vulnerable workers will continue to remote work under the Collective Agreements, if any. This can occur by assigning the worker to a different task included in the same category or classification, as defined by applicable contracts and specific vocational training carried out remotely. A decree of the Minister of Health, in agreement with the Ministers of Labour and Social Policy and Public Administration, will be adopted within 30 days from the entry into force of the Decree (i.e. by next 24 January). This will identify the chronic illnesses with a lower level of clinical compensation and implications of severity to be considered.
Parental leave
The provisions of art. 9 of Decree Law no. 146/2021, converted with amendments into Law 215/2021 ( “Fiscal Decree”), which regulate parental leave during the emergency period, have been extended until 31 March.
The possibility for workers who are parents of cohabiting children under 16 to take parental leave if suspended from in-person teaching, covid-19 infection or quarantine, is extended. These periods are compensated at 50 per cent of pay until the child reaches 14 years of age.
Other related insights:
With its message no. 3589 of 21 October 2021, INPS provided clarifications on the use of its institutional portal “Greeenpass50+” for the massive control of the Covid-19 Green Certificate, “Green Pass“), by private and public employers with more than 50 employees who are not NoiPa members.
The service provided by INPS – which obtains the information by directly querying the DGC National Platform – (PN-DGC) – allows the asynchronous verification of the Green Pass referred to the list of tax codes of its employees, known to the Institute at the time of the request.
The service can be used by interested companies after having been accredited by the Institute following the website procedure (accessible in the companies and consultants’ service section) by providing the tax codes of the checkers, i.e. those authorised to check the workers’ Green Pass, who will then be enabled.
The service includes three distinct phases:
Through this system, INPS will daily use Uniemens flows to identify the employees of accredited companies and check their possession of the Green Pass, while checkers can daily view all the company employees, checking the Green Pass only for those who are working.
The response will be a list of the names provided and the verification outcome, expressed by a red cross or a green tick.
If the system specifies that the worker does not have a valid Green Pass, they have the right to request that their certificate is checked when accessing the workplace using the Verifica C19 application.
