Decree-Law no. 127/2021 (the “Decree“) was published in the Official Gazette on 22 September 2021 and has been in force since 23 September. According to this Decree, from 15 October until the following 31 December, anyone carrying out any work, training or voluntary activity in the private sector is required to possess and submit, upon request, a Green Pass to access workplaces. The obligation will not apply to persons exempt from vaccination based on the appropriate certification. Employers are obliged to check their employees and any others working on their premises. By 15 October, employers must define the operating procedures for organising checks, including sample-based examinations. Where possible, it should be prioritised that checks are carried out at workplace access, and those in charge of checks and objections should be formally identified. The organisation methods for carrying out the checks will be defined by a Prime Ministerial Decree. Workers who do not have a Green Pass or refuse to show it, will be considered unjustified absentees until the Green Pass is submitted and no later than 31 December without disciplinary consequences or loss of employment. No pay or other compensation or emolument shall be due for days of unjustified absence. For employers with fewer than 15 employees, the general rules will apply, and precisely, after the fifth day of unjustified absence, the employer may suspend the worker and enter into a fixed-term contract to replace them for a maximum of 10 days, renewable once, not beyond the deadline of 31 December. Workers who enter workplaces without a Green Pass will be subject to disciplinary action by the employer and face an administrative fine ranging from €600-1,500. Employers who fail to organise or carry out checks will be subject to an administrative fine ranging from €400 to €1,000. If the breach is repeated, the sanction will be doubled.
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De Luca & Partners managing partner Vittorio De Luca, discusses the legislative measures that introduced the ban, initially generalised and later sectorial, of dismissals for economic reasons. The government has reached an agreement with the social partners on the dismissal prohibition, what is your take on it? “The agreement includes a “commitment” to use all existing social safety nets before resorting to redundancies, in particular the use of wage subsidies,” he stated. “The agreement in question, structured as it is, represents a pure form of recommendation and certainly not an obligation. Faced with a generalised ban from March 2020 and until March 2021, we are now faced with a diversified framework: with the Support Decree and the law converting the Support Decree bis, the ban on dismissals has been partly concluded and partly extended at certain conditions”. Looking at the European situation, the European Union has basically rejected the measure in effect from March 2020, underlining that Italy is the only Member State to have introduced a generalised ban on dismissals from the beginning of the Covid-19 crisis.
What do you think about this? “With the Recommendations published on June 2 the European Commission explained how the ban on dismissals was not particularly effective and turned out to be unnecessary considering the extensive use of systems aimed at maintaining jobs. The Commission rejected the measure pointing out that it is a measure that is to the advantage of permanent employees and detrimental for fixed-term, temporary or seasonal workers. He continued – it is necessary to emphasise that the freezing of entire manufacturing sectors risks being counterproductive because it hinders the necessary adjustment of the workforce to changing company needs”.
In a ruling dated 8 July 2021, the Court of Trento, upheld a disciplinary dismissal (for just cause) imposed on a teacher who repeatedly refused to wear a protective mask while working at school.
In this case, the teacher, employed by the Autonomous Province of Trento, refused to comply with an order issued by the head of the educational activities department, who asked her to wear a protective mask to ensure the health and safety of children, colleagues and the school community. In support of her refusal, during the disciplinary proceedings, the employee claimed that she did not want to wear the mask because she was a “conscientious objector” and that additionally, she was unable to do so for health reasons. Dismissed for just cause, she appealed to the employment tribunal of Trento, requesting reinstatement.
The Tribunal found that the allegations made by the employee did not include any medical certification capable of justifying her refusal to wear the mask. Her conduct conflicted with the guidelines for the protection of health approved by the President of the Autonomous Province of Trento by order of 25 August 2020 and, at national level, with the Protocol for the protection of health and safety at work, and the Memorandum of Understanding signed by the Ministry of Education on 6 August 2020, prescribing the obligation “for anyone entering school environments” to “adopt hygienic precautions and use a mask.”
According to the Court of Trento, the above administrative measures were based on the legislator’s will (Article 16, paragraph 1, of Decree 18/2020), which sees masks as personal protective equipment. Based on previous Court of Cassation guidelines (25932/2013 and 18265/2013), the Trento court judge recalled that “the persistent refusal by the employee to use the personal protective equipment justifies the dismissal of the defaulting employee.”
Continue reading the full version published on Il Quotidiano del Lavoro of Il Sole 24 Ore.
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.
The so called “Decreto Rilancio” provides with also rules relating to health and safety at work.
First of all, to facilitate the phase of the business continuity and restart, Decreto Rilancio establish two tax credits in favor of the employer that carries out intervention in order to prevent the contagion and to limit the risk of spread of Covid 19 in the workplace.
The Recovery Decree also emphasiz the relevance of smart working, recognizing the right to the smart working until the end of the epidemiological emergency – Covid-19, to parents employed in the private sector who have at least one child under the age of 14, a condition that (i) there is no other parent in the household benefiting from income support instruments in the event of suspension or cessation of the working activity or (ii) there is non-working parent.
Vittorio De Luca and Antonella Iacobellis talk about it for Il Sole 24 Ore on Saturday 23rd May, on the special dedicated to the work rules of the Recovery Decree.
Download on the Il Sole 24 ore Website the contribution of the firm on safety and health at work.
