Home
last updated on 24 June 2020 | reading time approx. 10 minutes
Should it be possible to work remotely, the employer can introduce the smart-working modality. In general, this possibility is granted, pursuant to Law No. 81/2017, only on the basis of an individual agreement with the employee, to be sent to the Ministry through the "Cliclavoro" website. However, due to the Covid-19 emergency it is possible for the employer to use the smart-working modality without agreement, simply by communicating the list of employees involved through the "Cliclavoro" website.
In addition, the employer must send to the employees an information about the risks to their health and safety arising from this modality of carrying out the working activity, which can be found on the INAIL website. It is also advisable, in the absence of the agreement, to provide employees with information on the applicable provisions (Law No. 81/2017), specifying that since smart-working is introduced to contain the epidemiological emergency, the performance of the working activities will exclusively be possible from the employee's home.Following the conversion into Law of the Law Decree “Cura Italia”, the period in which disabled employees, or employees with a disabled in their household, have the right to perform their work activities from home has been extended from 30 April 2020 to the end of the epidemiologic emergency (now set on 31 July 2020), provided that this way of carrying out the working activity is consistent with the peculiarities of the performance.
Trough the Law Decree no. 34/2020, so-called “Decreto Rilancio”, until the end of the state of emergency, employed parents having at least a child under the age of 14, have the right to perform their work activities from home, even in the absence of individual agreements but without breaching the informative obligations of which under Law no. 81/2017, provided that this way of carrying out the working activity is consistent with the peculiarities of the performance and the other parent is not benefiting from income supporting measures or is non-working parent.
In light of the provisions of the "Shared Protocol for regulating measures to face and contain the spread of the Covid-19 virus in the workplace" of 24 April 2020, it is deemed that the employer can "force" the employees to use holidays and paid leaves already accrued in the previous financial year. For the use of holidays to be accrued in the current financial year, however, it is advisable to collect the consent of employees, since the possibility of forcing the use of such holidays is debated.
Working hours can be temporarily reduced due to the reduced workloads caused by the current health emergency. The exact working hours must be defined in the agreement concluded with the single employee. In this context, it is advisable to prefer the “Vertical part-time” (meaning that the employee works full-time on certain days of the week and has other days off), because it allows to reduce travels and days spent in the company, therefore limiting the risk of infection.
According to art. 73 of the “Decreto Rilancio”, the number of paid leaves covered by figurative contribution of which under art. 33,3 of the Law no. 104 of 5 February 1992 for health workers and law enforcement personnel, affected by the application of the Law no.104/92, is increased in the monthly total amount of 12 days (already provided for March and April by the Decree “Cura Italia”) with reference to the months of May and June 2020.
Until 31 July 2020, employees with children not older than 12 years of age can apply for additional parental leave of up to a total of 30 days, even non-consecutive, which can be used alternatively between parents. During this period the affected workers is granted 50% of the retribution.
Alternatively, one ore more bonus are provided for the purchase of baby-sitting services up to a total of euro 1.200,00, granted by means of the so-called “Libretto di famiglia”.
With the "Decreto Rilancio", in fact, a further 15 days of extraordinary parental leave or euro 600.00 as a "baby-sitting" bonus are granted in addition to the ones already provided by the “Cura Italia”.
In the absence of other forms of income support for suspension or termination of working activity in favor of working parents, one of them, alternatively, may abstain from work for the entire duration of the suspension of school services of each type without the right to retribution, but with the right to keep the job position.
Companies which, as of 23 February 2020, have an ongoing extraordinary salary integration treatment, may apply for ordinary salary integration treatment for a period of 9 weeks from 23 February 2020 to 31 August 2020, increased by further 5 weeks at the end of the first 9-week period. An additional period of 4 weeks shall be granted for employers that have already benefited from the above-mentioned 14 weeks (9+5).
The granting of ordinary treatment suspends and replaces the extraordinary furlough.
Article 22 of Law Decree no. 18 of 17 March 2020, converted into Law no. 27/2020, and the Law Decree no. 34/2020 – so-called “Decreto Rilancio”- extended, in a residual form, access to the Derogatory Furlough to all companies, regardless of their sector of activity and the number of workers employed by them, who are excluded from the scope of the other social security payments.
The single Regions and Autonomous Provinces have regulated access to these treatments.The treatment may be granted for the duration of the suspension of the employment relationship and in any case for a period not exceeding 9 weeks for period between 23 February 2020 and 31 August 2020, increased of further 5 weeks only for employers that, in the same period, have already been granted with a period of 9 weeks.
A further 4 week period is granted for for employers that have already benefited from the above-mentioned 14 weeks (9+5).
The CID may be granted only with reference to employees in force on 25 March 2020 and no prior trade union agreement for employers with a maximum of 5 employees has to be stipulated.
The employer is, in any case, obliged to send the INPS all the data necessary for the payment of the salary integration, according to the established modalities, by the end of month following the one in which the salary integration period is active.
For periods following the first 9 weeks granted by the Regions, the employer must submit an application to the INPS, indicating the list of entitled persons and the hours of suspension for each worker.
On 24 April 2020, the "Agreement on measures aimed at containing the spread of the Covid-19 in the workplace" signed by Cgil, Cisl and Uil together with the Government and the employers' trade union representatives on 14 March 2020 has been integrated.
The Agreement, taking into account the different government provisions, provides that "the continuation of production activities can only take place under conditions that ensure adequate levels of protection for the people working". In addition, the social parties agreed on the possibility of the "use of social security payments, with the consequent reduction or suspension of working activity, in order to enable the companies in all sectors to apply such measures and the resulting safety of the workplace".
Failure to implement the Protocol which does not ensure adequate levels of protection shall result in the suspension of the activity until safety conditions are restored.
In detail, the Agreement provides:
The employer must provide the employees and anyone, who enters the company premises, with information leaflets by handing those out and/or posting those at the entrance and in the most visible places of the company premises. The information to be provided therewith regards the obligations: to stay at home in case of fever higher than 37.5 °C or other flu-like symptoms; to declare whether there are dangerous conditions (flu-like symptoms, fever, contact with people tested positive for Covid-19 in the previous 14 days); to respect the provisions of the Authorities (safety distance, frequent hand washing, etc.); and to inform the employer in a timely manner of the presence of symptoms; the commitment to inform workers of the applied measures, which the personnel must comply with (including the use of masks).
The employer is allowed to measure the temperature of persons entering the company´s premises, paying attention to compliance with data protection provisions. Further, the employer must prohibit the entrance to persons with symptoms or persons who have been in contact with persons tested positive to Covid-19 and must stagger entrances and exits, so to avoid excessive gathering of people: In case of workers tested positive to the Covid-19, the entry into the company is preceded by a medical certificate that shows that the swab has been tested negative. If possible, it is recommended to provide a door of entry and a different one of exit and to ensure the availability of disinfectants (adequately indicated).
The employer must provide for entry, transit and exit procedures as well as predefined routes and timing, to avoid the contact with the personal. Drivers must remain in their vehicles and the access to company´s offices is not allowed. Therefore, dedicated bathrooms for suppliers/transporters and/or other external personnel must be provided. In any case, the access of visitors must be reduced as far as possible. In case of a contract relationship, the principal must provide the contractor with complete information on the contents of the company protocol and monitor compliance with the provisions laid down.
The employer must guarantee the daily cleaning and periodic sanitization of premises, workstations and common areas as well as the periodic sanitization with appropriate disinfectants of keyboard, touch screen and mouse. The company must provide adequate hand cleaning disinfectants and the frequent hand cleaning with soap and water is generally recommended. With regards to common areas, including canteens and changing rooms, a restricted access, continuous ventilation, reduced time of stay and keeping of the distance of 1 meter between people must be ensured. In the changing rooms, it is necessary to provide spaces for the storage of work-clothes and adequate hygienic conditions must be ensured. Further, periodic sanitization and daily cleaning of the canteen and the keypads of the beverage and snack dispensers must be guaranteed
In order to reduce the contemporary presence in the company and, consequently, the contacts:
All national and international business travels, also if already agreed upon or organized, are suspended and cancelled. Meetings, which require the physical attendance, are not allowed. Further, all internal events and training activities in the premises of the company- including the mandatory ones (e.g. on health and safety) - must be suspended and cancelled. Persons, who were undertaking mandatory training on health and safety in the workplace (e.g. responsible for the fire protection), will still be able to temporarily carry out the function assigned to them, even if they have not completed the training. The medical surveillance (also periodic) must proceed according to the indications of the Ministry of Health. The competent physician reports to the company situations of particular fragility, in observance of applicable data protection provisions. In case the distance between people in the company must be lower than 1 meter, the use of masks and other Personal Protective Equipment complying with provisions of health authorities is necessary. When activities are resumed, the doctor responsible for identifying individuals with particular situations and for the reintegration into work of individuals with previous infection should be involved.
In case of fever and respiratory infection symptoms that have emerged while at the workplace, the employee must immediately inform the HR department, which must immediately proceed with the isolation of the employee according to provisions of the health authority. The employee must not visit the emergency room and/or to the company infirmary and the employer must immediately alert the competent health authorities and the emergency numbers for the Covid-19 emergency. In case of a positive test result, the company must collaborate to identify possible "close contacts " of employees tested positive for Covid-19.
A committee for the application and verification of the regulations set by the Protocol shall be set up.
Until the date on which the emergency ceases, employers shall ensure, exclusively through the company doctor, exceptional health surveillance of workers most at risk of infection on the basis of age, immunodepression risk, oncological pathologies or life-saving therapies.
Employers who are not obliged to appoint the competent doctor may appoint a doctor for the emergency period or may apply to the INAIL, which provides this service with its own occupational physicians.
If the employee is found to be unfit for the job, this is not a reason for the employer to terminate the employment contract.
Pursuant to the "Cura Italia" Law Decree, converted into Law no. 27/2020, and to the Law Decree no. 34/2020 – so-called “Decreto Rilancio” – starting from the date of entry into force of the decree “Cura Italia” (17 March 2020), the opening of collective dismissal procedures is precluded for 5 months. During the same period, pending proceedings started after 23 February 2020 are suspended.
Until the expiration of the before-mentioned deadline, the employer, regardless of the number of employees, cannot terminate an employment contract for justified objective reason pursuant to art. 3 of Law no. 604/1966 and cannot resume the ongoing procedure of dismissal for objective reason of which under art. 7 of Law no. 604/1966.
Such prohibition does not apply in case the staff affected by the dismissal are employed under a contract relationship and are re-employed following the intervention of a new contractor on the basis of a legal provision, a national collective labour agreement or the contract itself.
Employers who, in the period from 23 February 2020 to 17 March 2020, have terminated employment contract for objective reasons, may revoke the dismissal at any time, provided that they simultaneously apply for the salary integration treatment from the date on which the dismissal took effect. In this case, the employment relationship shall be deemed to have been restored without interruption, without charge or penalty to the employer.
The conversion of the "Cura Italia" Decree into Law no. 27/2020 granted employers the possibility of renewing or extending fixed-term contracts and fixed-term lease of manpower agreements, in derogation of articles 20 and 32 of Legislative Decree no. 81 of 15 June 2015, which prohibits the stipulation and/or extension of fixed-term employment (or lease of manpower) relationships at production units in which there is an ongoing suspension of work or a reduction in working hours covered by a Furlough treatment. Moreover, a derogation has been made to article 21, paragraph 2, of Legislative Decree no. 81/2015, which provides for the compliance with a fixed period of time (the so-called "stop&go" period) between the expiry date of the first fixed-term contract and the second fixed-term contract to be entered into with the same worker.
Finally, the Law Decree “Rilancio” has provided for the possibility of renewing or extending fixed-term contracts, only if already in force as of 23 February 2020, until August 30, 2020, also in derogation of art. 19 of Legislative Decree 81/2015 (which provides for the obligation to state specific reasons for fixed-term employment relationships of more than 12 months).
With reference to the following sectors:
Employers may apply for stipulating an employment contract with foreign citizens present on the national territory or for stating the existence of an irregular employment relationship, still in progress, with Italian citizens or foreign nationals. Similarly, foreign citizens, with a residence permit expired on 31 October 2019 (not renewed), can apply for a temporary residence permit, valid only in the national territory, for a duration of six months from the submission of the application.
Workers whose NASPI/DIS-COLL period is terminated between 23 February and 30 April 2020 may be granted an extension of 2 months of the mentioned treatment, for an amount equal to the last monthly salary, provided that they do not benefit from different supporting measures provided by the Law Decree “Cura Italia” and by the Law Decree “Rilancio Italia”.
Coronavirus: What you need to know
Flavio Caggiula
Partner
Send inquiry
Rödl & Partner in Italy
