The DCPM was published in the Official Gazette last 24 October containing “additional implementation measures of the decree-law 25 March no. 19, converted, with amendments, by Law no. 35 of 25 May 2020, containing “Urgent measures for dealing with the COVID-19 epidemic emergency” and decree-law no. 33 of 16 May 2020, converted, with amendments, by Law no. 74 of 14 July 2020, containing “Urgent measures for dealing with the COVID-19 epidemic emergency.” The measure in effect from 26 October 2020 until next 24 November replaces the previous DCPM of 13 October, as amended and supplemented by the later DCPM of 18 October. It reiterates compliance with the shared Protocol regulating the measures to control and contrast the spread of the COVID-19 virus in the workplace signed last 24 April between the Government and social partners. The contents of previous decrees were confirmed on the use of masks and the other protection measures, aimed at reducing contagion, including physical distancing and hand washing, and provides other protocols and guidelines in various work sectors. Moreover the use of agile working is highly recommended in the private sector as well as holding private meetings remotely. In addition, private employers are advised to differentiate the start time of personnel. The suspension of all convention and conference activities was confirmed with the exception of those held remotely.
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Law no. 77/2020 has amended Article 90, Paragraph 1 related to “Decreto Rilancio” with reference to Remote Working and it has envisaged that until the end of the epidemiological emergency from COVID-19, the right to carry out remote working is recognized, based on the assessments of doctors competent, even to workers most exposed to the risk of contagion from SARS-CoV-2 virus, due to:
Moreover, even if until July 31, 2020, it is possible to activate the remote working in the simplified variant for COVID-19 without the individual agreement with the employee, it must be considered very useful to provide in any case an individual agreement in order to discipline, for example: (i) the control power of the employer, (ii) certain profiles related to the use of IT tools that have obvious privacy implications, (iii) the so-called right to disconnect (the times of non-work, of unavailability).
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Source: Guida al Lavoro
Within the scope of urgent preliminary ruling procedures, the Court of Mantua, with order No. 1054 of 26 June 2020, ruled for the very first time on the necessary conditions to be met in order for a parent having a child younger than 14 years old to be entitled to remote working pursuant to article 90 of Law by Decree No. 34/2020 (the so-called ”Relaunch Decree”).
A worker, employee of a parking company, brought a claim under section 700 of the Code of Civil Procedure, requesting the Judge to order its own employer to allow him to carry out his own services on a remote working basis, to be able to look after his daughter younger than 14 years old and in order to avoid any harm to his own health.
In appearing before the court, the employer inferred the incompatibility of the duties assigned to the claimant (visits to car parks to meet the relevant technical managers; support to the health and safety management within the company as the Workers’ Representative for Safety or RLS; inspections aimed at enhancing and protecting company assets) with a remote working arrangement, in light of the fact that the carrying out of some activities assigned to the employee necessarily had to be carried out on site.
In rejecting the claim brought by the employee, the Court of Mantua preliminarily found that article 90 of the so-called Relaunch Decree does not acknowledge an absolute right to render one’s services on a remote working arrangement to parents with children younger than 14 years old.
Indeed, the rule foresees that the necessary condition to be met in order to be able to avail oneself of the right to carry out the respective own working activity on a remote working basis is the compatibility of any such arrangement with the typical features of the duties entrusted to the employee.
Well then, in the Judge’s opinion, such necessary condition could not be deemed to be met in the case in point under dispute, since it had emerged that the duties assigned to the claimant involved, “at least to a significant yet not prevailing extent, the need for the employee to be physically present”.
Furthermore, throughout the legal proceedings it emerged that the claimant’s wife worked regularly on a remote working arrangement at her own residence, where she lived with the daughter and with the husband
Such circumstance – even if in itself did not prevent vesting the right to remote working in the claimant – has been held by the Judge as to show the lack of any imminent and irreparable danger for the under-age daughter.
Furthermore, with the commented decision, the Court has upheld the principle pursuant to which in no way can the periculum in mora be deemed to arise in re ipsa but, however, it must be based on specific elements.
There is thus a need to raise precise productions allowing the parties to the legal proceedings and the Judge to make a check aimed at protecting a specifically, yet not theoretically, irremediable harm.
The claimant failed to abide by the above-mentioned burden of production.
Based on any such necessary conditions, concerning the fumus boni iuris and the periculum in mora, the Court of Mantua thus rejected the employee’s claim, by upholding the fairness of the employer’s behaviour.
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The rejection decision of the Court of Mantua proves to fully abide by the provisions under article 90 of Law by Decree No. 34/2020 pursuant to which “until the cessation of the state of epidemiological emergency caused COVID-19, working parents employed within the private sector having at least one child younger than 14 years old, provided that there is not another parent within the family unit benefitting from the income support measures in case of suspension or discontinuance of work, or that there is not a non-working parent, shall be entitled to work on a remote working arrangement even lacking any individual agreements to said extent […] and provided that any such arrangement is compatible with the characteristics of the work done”.
The foregoing entails that, as correctly ruled by the Judge,until the emergency lasts, workers may claim the right to fulfil their own duties on a remote working arrangement, unless the objective impossibility to fulfil those duties remotely is proven.
Therefore, it is the case of a quaestio facti to be assessed on a case per case basis.
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The COVID-19 emergency has awakened interest in remote or agile working, with the aim of limiting the spread of the virus and ensuring business continuity,.
In the emergency phase a simplified mode of remote working has been introduced: until the end of the epidemiological state of emergency, the remote working may be activated even in the absence of individual agreements.
If, therefore, there is no extension related to the emergency situation and the connected use of the simplified mode of agile work, after 31 July, it will be necessary to switch from the emergency remote-working to the ordinary one regulated by Legislative Decree no. 81/2017.
In addition, with the overcoming of the emergency phase, it is to be hoped that remote working recover the original spirit aimed at increasing competitiveness and a greater possibility of reconciliation of life and work.
Continue here to read the full version of the article in Italian language.
Source: Agendadigitale.eu
Vittorio De Luca participated in the direct streaming on the website and social accounts of the Il Sole 24 Ore Group, in the programme “Il Sole Risponde” conducted by Marco Lo Conte, to discuss the issue of remote working during the Coronavirus. The regulatory framework, introduced novelties, benefits and limits revealed during the emergency, opportunities and challenges of a change of paradigm in the post-emergency were analysed in the direct broadcast.
This is the recording of the interview in Italian.
