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).

Facts of the case

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.

The Court’s decision

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.

Case law precedent of the Court of Grosseto

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.

Other related insights:

• Remote working and the right to disconnection
• Can we talk about emergent right to remote working?
• Remote working, risks if the company opposes in times of Coronavirus

An amendment to the Liquidity Decree was approved in the House Committee on 21 May last, which relieves employers of any liability whatsoever in the event that employees should contract COVID-19 in the company, provided that the relevant protocols are followed. The amendment states, verbatim, that: “For the purposes of safeguarding against the risk of contagion from SARS-CoV-2, public and private employers comply with the obligation referred to in Article 2087 of the Italian Civil Code by applying the provisions contained in the joint protocol which regulates measures to combat and contain the spread of the Covid-19 virus in the workplace, signed on 24 April 2020 by the Government and social partners, as subsequently amended and supplemented, and in the other protocols and guidelines referred to in Article 1.14, of  Decree-Law No. 33 of 16 May 2020, and also by adopting and maintaining in force the measures provided for therein.  If the aforementioned provisions do not apply, the relevant measures will be those contained in the sector protocols or agreements entered into by the trade unions and employers’ organisations that are comparatively more representative at national level”. If the amendment under consideration is approved when the bill is passed, it would assume regulatory status as announced in the circulars of INAIL (the National Institute for Insurance against Occupational Accidents). At this point, we merely await the passing into law of the Liquidity Decree.

Other related insights:

• Covid-19 injury, critical profiles
• Ready to go again but with what rules?
• Covid-19: the National Labour Inspectorate provides the first clarification concerning company inspections
• Protocol for the regulation of measures to combat and contain the spread of the Covid-19 virus in the workplace

Decree Law no. 34 of  May 19, 2020 (the so-called “Recovery Decree”), entitled “Urgent measures in the field of health, support for work and the economy, as well as social policies related to the epidemiological emergency by COVID-19”, has been published.

Below is a summary of the main innovations related to the work profiles introduced by the Decree.

A. Amendments concerning (i) ordinary lay-off procedure (‘CIGO’) and ordinary allowance (‘FIS’), (ii) extraordinary lay-off procedure (‘CIGS’) and (iii) temporary lay-off procedure in derogation (‘CIGD’):

1. The following main amendments and integrations are provided for in the ordinary lay-off procedure (“CIGO”) and ordinary allowance (“FIS”) with “COVID-19 emergency” as per art. 19 of the “Cura Italia Decree”:

• The ordinary lay-off procedure and the ordinary allowance remain available for a maximum of nine weeks for the periods from February 23 to August 31, 2020, with the possibility, however, of being increased by a further five weeks in the same period for employers who have fully exhausted the period previously granted and, therefore, all nine weeks. A possible additional period of up to four weeks of treatment from September 1 to October 31, 2020 is also recognised.

• the obligation of information, consultation and joint examination with the trade unions to be carried out, also electronically, within three days following the day on which the communication was sent.

• the workers involved in the two social shock absorbers in question must be employed by the employers requesting the benefit on March 25, 2020 and no longer on February 23, 2020.

2. With regard to the ordinary lay-off procedure (“CIGO”) for companies that are already in the extraordinary lay-off procedure (“CIGS”), the following amendment is provided:

• The ordinary wage integration treatment may be requested for a maximum duration of nine weeks for the periods from February 23 to August 31, 2020, increased by a further five weeks in the same period for employers who have fully exhausted all the nine weeks previously granted. Also in this case a possible additional period of a maximum of four weeks of treatment from 1 September to October 31, 2020 is recognized.

3. With reference to the “Cassa Integrazione Guadagni in deroga” (“CIGD”), the following main amendments and integrations are provided for:

• The period of wage integration in derogation may be granted for a maximum duration of nine weeks for the periods from 23 February to 31 August 2020, increased by a further five weeks in the same period only for employers to whom the previous nine-week period has already been fully authorised. Any additional period of up to four weeks of treatment for the periods from September 1 to October 31, 2020 is also recognized.

• With regard to the procedure to be followed in order to apply for CIGD treatment, the agreement with the trade unions is still not required for employers who employ up to 5 employees, while the agreement is required for employers who have shut down their activities in compliance with the emergency measures issued to deal with the epidemiological emergency.

B. Amendments concerning (i) specific leave and baby-sitting bonuses, (ii) paid leave ex. Art. 33, L. 104/1992 and (iii) dismissals for objective reasons.

1. Specific leave:

• The specific leave for parents working in the private sector, with children not older than 12 years of age, is extended up to 30 days, to July 31, 2020;

2. Paid leave:

• The number of days of paid leave covered by figurative contributions is increased by a further 12 days to be available in May and June 2020.

3. Dismissals for justified objective reasons:

• The period of prohibition to start collective redundancy procedures and suspension of procedures established after February 23, 2020 is extended until August 17, 2020;

• the prohibition of dismissal for objective reasons under Article 3 of Law 604/66 is also extended therefore until August 17, 2020;

• all ongoing procedures for dismissal for objective reasons under Article 7 of Law 604/66 (procedures for objective reasons initiated before the ITL) are suspended for the same period;

• finally, the employer who has terminated the employment contract for objective reasons in the period between February 23, 2020 and March17, 2020, is allowed to revoke the termination at any time, with the consequent re-establishment of the employment relationship without interruption. This shall be without charge or penalty to the employer, provided that at the same time of the withdrawal the employer makes a request for the salary supplement from the date on which the dismissal takes effect.

C. New measures concerning (i) rescheduling of working time (ii) right to smart working (iii) extension and renewal of fixed-term contracts

1. With regard to the rescheduling of working hours:

• for the year 2020, the collective labour agreements signed at company or territorial level by employers’ and workers’ associations that are comparatively more representative at national level, or by their trade union representatives operating in the company in accordance with the regulations and inter-confederal agreements in force, may implement specific agreements for the rescheduling of working time for new organisational and production needs of the company;
• part of the working hours may be aimed at training courses whose charges for training hours, including the related social security and welfare contributions, shall be borne by a specific Fund;
• the criteria and methods for the application of the measure and the use of resources will be identified by a decree issued by the Minister of Labour and Social Policy in accordance with the Minister of the Economy and Finance, to be issued within 60 days following the Decree’s effective date.

2. Workers in the private sector with at least one child under the age of 14 – until the termination of the epidemiological emergency by COVID-19 have the right to perform remote work, even in the absence of individual agreements:

• the right will be exercised provided that the remote work is consistent with the characteristics of the service;

• the performance of remote work can also be carried out through IT tools that are at the employee’s disposal if they are not provided by the employer;

3. With regard to fixed-term contracts, employers have the possibility to renew or extend existing fixed-term employment contracts until August 30, 2020, even in the absence of one of the reasons provided for in the so-called Dignity Decree.

◊◊◊◊

The law firm De Luca & Partners remains available to provide any information necessary to deal with the emergency, as well as to develop the best strategies to minimize its impact on business productivity.

Vittorio De Luca and Antonella Iacobellis for Guida al Lavoro of Il Sole 24 Ore deal with some critical issues resulting from the fact that the “Cura Italia” decree states that the contagion at work from Covid-19 is equivalent to an accident at the workplace.

Click here to read the DLP insights related to the case at issue and the considerations of the Law Firm.

The emergency measures issued by the Government to manage the pandemic emergency of Covid-19 have attributed, to all intents and purposes, to remote-working also the function of a contagion containment measure and consequently a means to protect workers’ health.

Remote-working, in fact, is a way of carrying out work activities that, while allowing them to continue, allows, by substantially reduction of the number of people entering and visiting the workplace, to limit contact between people and consequently also the risks of contagion.

Although it is true that it is not possible to state that the worker has a right to remote-working, it is equally true that it is not possible to state that the employer has a mere faculty to activate smart-working at the time of the COVID19.

On this point, Court of Grosseto, through the decision of April 23, 2020, that we will examine later, stated that: “In this context, the use of remote-working, governed in general by Law No 81 of 22 May 2017, has been considered a priority. For obvious reasons, this modality of work cannot, and could not, be imposed in a general and indiscriminate manner; nevertheless, it has been repeatedly and strongly recommended and even considered as an ordinary way of performing the service in the Public Administration. (see art. 87, D.L. 18/2020). In addition, pursuant to art. 39, para. 2, of Legislative Decree no. 18/2020, “workers in the private sector, suffering from serious and proven pathologies with reduced working capacity, have priority in performing remote work pursuant to articles 18 to 23 of the law of 22 May 2017,”.

The case originates from an emergency action pursuant to Article 700 of the Italian Criminal Code filed by a worker who claimed the right to trigger remote-working.

Read the full version of the article in Italian language here.

Source: Il Quotidiano del Lavoro