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Salary integrations and labour law measures relating to Covid-19 in the “Sostegni Decree” and Law Decree no. 30/2021

published on 24 March 2021 | reading time approx. 5 minutes

On March 23, 2021 Law Decree no. 41/2021 (so-called ‘Sostegni Decree’), which has updated the measures implemented for supporting businesses and economic operators in contingencies caused by the covid-19 emergency scenario, has come into force.

Salary integration (Art. 8 par. 1-8 of the sostegni decree) »
prohibition of dismissal (Art. 8 par. 9-11 Sostegni decree) »
Fixed-term contracts (Art. 17 Sostegni decree) »
provisions in favor of parents (Art.2 law decree No. 30/2021) »
emergency related Smart-Working (Art. 19 par. 1 legislative decree no. 183/2020 ('Decreto milleproroghe'), converted by law. no. 21/2021) »

Such provision follows the Law Decree no. 30/2021, which establishes specific provisions on parental leaves and smart-working. The above decrees represent the first acts through which the new government, led by Mr. Mario Draghi, has set forth economic and labour measures related to the emergency caused by the COVID-19 pandemic scenario.

Hereinafter we provide a brief summary of the main measures implemented in the field of labour law:

Salary integration (Art. 8 Par. 1-8 of the Sostegni Decree)

Relating to the Ordinary Furlough (‘Cassa Integrazione Guadagni Ordinaria – CIGO’), a further 13-week period has been implemented, for the period starting from April 1, 2021 to June 30, 2021. However, relating to the Derogatory Furlough (‘Cassa Integrazione Guadagni in Deroga – CIGD’) and the Ordinary Cheque by the Salary Integration Fund (FIS), a further 28-week period has been implemented, for the period from April 1, 2021 to December 31, 2021.

In both cases, salary integrations are granted for employees hired at the latest at the date of enactment of the Sostegni Decree (March 23, 2021), with no additional contribution to be paid by the concerned employer.

Salary integrations’ applications must be delivered to INPS within the end of the month following the one in which the reduction or suspension of working hours started. During the first application phase, the deadline will be the thirtieth day following the publication of the Support Decree, in case such a 30-day period falls later than the above general term.

In the case of direct payment of the salary integration, the data necessary for processing the direct payment must be communicated to the INPS. Such communication must be delivered within the end of the month following the pay-period to which the payment refers.

With specific reference to the CIGD, it is still possible to request an advanced payment of up to 40% of the integration due from the INPS for the hours requested in the application.

As regards the salary integrations granted by the Bilateral Funds, the rules set out for the CIGD and the FIS apply.

Under a formal point, the Trade Union notice introduced by paragraph 2 of section 19 of Legislative Decree no. 18/2020 (so-called “Cura Italia”) applies. Following such notice, Trade Unions are entitled to request a joint examination within 3 days, such examination may be carried out electronically and the achievement of an agreement is not mandatory.

Prohibition of dismissal (Art. 8 Par. 9-11 Sostegni Decree)

The Sostegni Decree extends the prohibition from carrying out dismissals providing for two different terms, depending on the type of salary integration available to the companies. Namely, the prohibition is generally extended up to June 30, 2021, and, in specific cases, it will last until October 31, 2021. Indeed, until this latter term, the prohibition remains effective only for employers, who will apply a reduction or a suspension of their working activity, applying for:

the Salary Integration Fund (FIS),
the Derogatory Furlough (CIGD) or
the Furlough for the agricultural sector (CISOA).

The explanatory report of the Sostegni Decree, however, provides that the prohibition applies only to employers, who benefit from the salary integrations with reason “covid-19”. In a first instance, the wording of the decree seems to extend the prohibition also to companies that apply CIGO, which however expires – according to the current provisions – on June 30, 2021. We deem, therefore, that the prohibition in force between the period from July 1, 2021 and October 31, 2021 refers only to companies that are even only potentially eligible for applying FIS, CIGD or CISOA, for the entire period, when the aforementioned measures may be used.

Correspondingly, the report clarifies that employers, who – not requesting the aforementioned furlough treatments – start collective dismissal procedures or serve individual dismissal for a justified objective reason, are not allowed to apply for the salary integrations with reason “covid-19”.

In any case, the prohibition continues to apply to collective dismissals (the procedures started after February 23, 2020 are still suspended) and individual dismissals for a justified objective reason, regardless of the number of employees staffed in the company.

As already provided for by the previous legislation, the following cases are not affected by the above prohibition:

The dismissals based on the definitive shutdown of the company’s activity; following the wind up of the company that does not provide for the continuation (even partially) of the activity, with an exception for the cases where the transfer of a complex of assets/activities occurs, which represents a transfer of undertakings (or of a branch) pursuant to section 2112 of the Italian Civil Code;
The cases where a company-level collective agreement, which provides for the incentivized termination of the employment relationship, is signed with the most representative trade unions at the national level (limited to employees who decide to adhere to the aforementioned agreement);
The dismissals issued in the event of bankruptcy, when the provisional operation of the company is not stated or its termination is ordered.

A further exception to the above prohibition of dismissal occurs in cases where the staff is dismissed by a private service contractor and is re-hired by a new private contractor pursuant to the provisions of the law, of a national collective bargaining agreement, or of the same service contract.

Fixed-term contracts (Art. 17 Sostegni Decree)

The possibility of extending or renewing fixed-term contracts without a formal reason has been extended for a maximum period of 12 months, and always within the maximum limit of 24 months of duration, up to December 31, 2021. This possibility can be used only once, but the decree clearly states that the extensions/renewals that have already occurred under the previous regulations do not affect the possibility set forth by the new provision.

Provisions in favor of parents (Art.2 Law Decree No. 30/2021)

Smart-working

The Law Decree no. 30/2021 has extended the possibility of working using smart-working mode for the parent employee co-habiting with a child who has not yet turned 16, for a period that corresponds to the duration of:

the suspension of scholar learning activity with the presence of the child;
the child’s covid-19 infection; or
the child’s quarantine period caused by the contact with a covid-19 positive subject.

This possibility is granted, alternatively, to both the relevant parents.

Extraordinary parental leave

Furthermore, exclusively for the case in which the employee’s work activity cannot be carried out remotely, the parent (alternatively to the other) is entitled to extraordinary parental leave, which provides the possibility of abstaining from working fully or partially during the suspension period of the scholar learning activity in presence, of the child’s covid-19 infection, or of the child’s quarantine period.

If the relevant co-habiting child is under the age of 14 years, the parent employee is entitled to an allowance equal to 50% of the daily salary for the whole period of absence from work. In the case, of a child between the ages of 14 and 16 years, the employee is not granted any indemnity, however, the prohibition of dismissal and the right of maintaining the employment relationship apply. Furthermore, the allowance for the period of abstention is granted in the case of parent employees of children with serious disabilities.

If during the period running from January 1, 2021 and the publication of the Law Decree no. 30/2021 the parent employees have requested ordinary parental leave, these periods can be converted, on request, into the above-mentioned extraordinary parental leave and will not be calculated or compensated following the ordinary parental leave regulation.

Baby-sitting bonus

Parents workers registered in the “Gestione Separata INPS”, autonomous workers even if not registered at INPS, the personnel of the security, defense, and rescue public bodies, who work in connection with the emergency caused by covid-19, and the employees of the healthcare sector (both public and private) belonging to the categories of doctors, nurses, biomedical laboratory technicians, medical radiology technicians, and socio-health workers, in the case of cohabitation with children under the age of 14 years, are entitled to the payment of one or more bonuses for the purchase of baby-sitting services up to an overall maximum limit of 100.00 Euros per week. This bonus is due for services performed during the suspension of scholar learning activities in the presence; covid-19 infection; or the quarantine period of the child and will be paid through the family booklet, referred to by section 54-bis of the Law Decree no. 50/2017. Alternatively, the above bonus can be paid directly to the applicant, in the event of the child’s enrollment to summer camps, to supplementary services for children referred to section 2 of Legislative Decree no. 65/2017, to territorial socio-educational services, to centers with an educational and recreational function and to integrative or innovative services for early childhood.

The babysitter-bonus cannot be granted contextually to the use of the nursery school bonus and can be required only if the other parent is not granted with other social measures, paid parental leave, or is performing work activity in smart-working.

On the days in which a parent employee is on smart-working, or uses extraordinary parental leave (even if not paid), or does not carry out any work activity, or is suspended from work, the other parent employee is not entitled to the extraordinary parental leave – both paid and unpaid –, nor to the babysitting-bonus, with a specific exception for cases where the parent employee is also a co-habiting with other children under the age of 14, had with other subjects, who are not benefiting from any of the above measures.

All the above measures are available to employees up to June 30, 2021.

Emergency related smart-working

(Art. 19 Par. 1 Legislative Decree no. 183/2020 (‘Decreto Milleproroghe’), converted by Law no. 21/2021)

Pursuant to section 19, paragraph 1 Law Decree no. 183/2020, as converted by Law no. 21/2021, up to the expiring of the epidemiological emergency caused by covid-19 and in any case no later than April 30, 2021, the smart-working modality – ordinarily governed by Law no. 81/2017 – does not require the implementation of the written individual agreement requested by the aforementioned regulation.

The obligation to provide an information notice relating to the health and safety of employees can be fulfilled electronically, by sending the document available on the website of the National Institute for Accident Insurance at Work (INAIL).

Substantially, although the emergency regulation is considered easier to be applied, because of the absence of an individual agreement, there are several issues arising in cases where a written agreement is not implemented. The lack of the above formality, in fact, does not allow the employer to regulate the modalities of the smart-working performance – as for example – regulating the smart-worker’s working hours, defining the time-slots of the employee’s availability as well as the periods of disconnection, and limiting the places from which the employee is allowed to perform the working activity.

Furthermore, it is worth mentioning that the individual agreement is necessary for implementing specific methods of exercising the employer’s control and disciplinary powers, methods of which the employee must be duly informed.

Given the above, more than a year after the introduction of the emergency related smart-working, it is generally clear to employers that the absence of an individual agreement with employees determines the arising of several potential issues. In the event companies plan to continue to implement smart-working, even partially, following the end of the emergency period, it is strongly advisable to proceed with the drafting and signing of a specific written agreement (on an individual or collective basis) with the concerned employees, without waiting for further extensions of the emergency smart-working period and, in any case, at the latest by its termination. The above is necessary to fulfill the relevant obligations set forth by Law no. 81/2017 and, furthermore, to validly continue the use of smart-working.