In an internal letter of the director general sent by e-mail to the directors of the system’s local and sectoral associations, Confindustria expressed its favourable opinion on the Covid-19 green certificate (better known as green pass) to access workplaces.
According to the position taken by Confindustria, the presentation of the green certificate should be part of the obligations of diligence, fairness and good faith on which the employment relationship is based. Consequently, the employer, where possible, could assign the non-vaccinated worker to tasks other than those typically carried out and pay them accordingly. If this is impossible, the employer should be allowed not to admit the employee to work, with the suspension of pay if they are removed from the company.
Together with the safety protocol updated on 6 April and the protocol on vaccination in the workplace signed on the same date, such an initiative aims to protect workers’ health and safety and the production process. Among other things, the proposal would be justified given the serious concern about a possible third pandemic wave that could lead to a new work shutdown and the consequent need for yet another extension of the Covid-19 social safety nets.
However, legally, this has several critical issues.
First, as for individual rights, it is necessary to consider Article 32 of the Constitution on the “right to health”, which represents a kaleidoscope of multiple forms of health protection. The article in question firstly states that “the Republic shall protect health as a fundamental right of the individual and in the interest of the community”, and then specifies that “no one may be obliged to undergo a given medical treatment except by provision of law”.
This constitutional provision protects health as a fundamental right of the individual and as an interest of the community. It allows the imposition of medical treatment if intended, as specified by the Constitutional Court, “to preserve the state of health of the person subject to it, and the state of health of others” (see ruling no. 5/2018 of the Constitutional Court).
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The Court of Bologna, in its judgment No. 2759 of 23 April 2020, clarified the correct application and scope of Article 39 of Decree Law 17/2020 (so-called “Cura Italia Decree“), converted into Law 27/2020, stating that the disabled worker is entitled to carry out his/her job duties remotely (i.e. under the “remote working” regime).
In March last a female worker, in view of her disabled condition, asked to be placed asked to be able to work remotely for the duration of the coronavirus emergency. She attached medical documentation in support of her application, attesting to 60% disability. She also highlighted that she had a child affected by a disability within the meaning of Article 3.3 of Law 104/1992.
The employer company replied to the worker that she was currently in redundancy and that when work resumed, her application (duly received) to be placed in remote working regime would then be examined. However, when work resumed, other employees were allowed to work remotely, but not her.
This led to an emergency Labour Court application pursuant to Article 700 of the Italian Code of Civil Procedure which sought, on the one hand, to establish the illegality of the company’s decision and, on the other, to establish the right to work under the remote working regime.
A series of regulatory provisions enacted in recent months to tackle the emergency pandemic identified certain categories of workers who are entitled to work remotely or to be prioritised for remote working. More specifically, disabled workers are entitled to work remotely if they meet the conditions of Article 3.3 of Law 104/1992, or if they have a disabled person within the household who meets the conditions of Article 3.3 of Law 104/1992 and, on the other hand, private sector workers are entitled to be given priority if they are affected by serious and proven pathologies which reduce their capacity to work.
Based on these regulatory provisions, the Court of Bologna held that the applicant was entitled to work under a remote working regime in view of her “fragile” status, attributable to her own disability and also to the fact that she was caring for a daughter with a serious disability. These conditions, according to the court, are sufficient to justify the presumption of a prima facie case.
In relation, on the other hand, to the risk of imminent and irreparable detriment by reason of delay, the trial judge ruled that both the worker and her daughter are “seriously exposed to the risk of contagion, even a serious form thereof, and the health emergency is still underway. The risk is well-founded that if the applicant were to work in the normal way, leaving home to get to work, this could expose her – during the period preceding a ruling on the merits – to the risk of imminent and irreparable detriment to her health and that of her daughter living at home”.
On this basis, the Court of Bologna allowed the worker’s application and ordered the company to permit her to carry out her job duties under the remote working regime, acknowledging that remote working was compatible with the specific nature of her job duties, in view of the fact that the applicant had previously used the telephone and computer in the ordinary course of those duties.
The Court of Grosseto also ruled on the issue of remote working during COVID-19 by the order of 23 April 2020. According to the Court, the multiple emergency provisions enacted in order to prevent the pandemic’s spread considered it a priority to be able to access the remote working regime, governed in general terms by Law 81/2017.
Accordingly, if the employer is objectively able to offer a remote working regime to his employees, he is obliged not to require (disabled) employees to use their holiday leave, as occurred in this case. The requirement to use one’s holiday leave, according to the Court, “cannot be indiscriminate, unjustified or penalising, particularly where priority entitlements exist for reasons of health“.
Note, for the sake of completeness, that the increasing prominence of remote working in the context of the present pandemic was recently confirmed by the Italian “Relaunch” Decree. More specifically, this Decree entitled parents with children under 14 years of age to avail of the remote working regime provided that their job duties are compatible with such regime, until the end of the state of emergency and, in any case, no later than 31 December 2020. This is on condition that no other parent in the household is receiving income support due to suspension or termination of work, or that there is no non-working parent in the household.
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