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
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Ready to go again but with what rules?
The National Labour Inspectorate provides detailed instructions to the territorial inspectorates to undertake checks on compliance with the contents of the protocol shared between the Government and the social partners on 14 March 2020 and on compliance with the precautionary measures to be taken for the safety of workplaces and workers. Vittorio De Luca, Antonella Iacobellis and Martina De Angeli analyse for Guida al Lavoro of Il Sole 24 Ore the operational guidelines to manage Phase 2.
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In order to facilitate the activity of the Prefects at a decisive moment such as that of the so-called Phase 2, the National Labour Inspectorate (“INL”), on 20 April 2020, published note no. 149 (“Note INL no. 149”), with which it provides a real operating guide for its territorial offices, to contribute, at the request of the Prefectures, to the necessary checks on the occurrence of the conditions provided for the prosecution – in case where it is permitted – of production, industrial and commercial activities, with a view to indispensable synergy in the management of the current pandemic emergency.
These requests are in response to the circular of the Ministry of the Interior dated 14 April 2020, prot. no. 15350/117 (Annex A to the INL Note no. 149) which provides clarifications regarding the D.P.C.M. 10 April 2020 and which, among other things, highlights the need for the Prefectures to request the collaboration of the competent services of the Local Health Authorities (“ASL”) and the support of the INL’s territorial articulation, for the purposes of control:
Source: full italian version published on Guida al lavoro – Il Sole 24 ore.
The National Labour Inspectorate (“INL”) issued two notes, one shortly after the other, used to provide the first clarifications concerning the inspection procedures for worksites in light of the pertinent guidelines, shared in the “Joint Protocol on regulation of measures for contrasting and containing the spread of the Covid-19 virus” (the “Protocol”) signed by the stakeholders on 14 March 2020 (recently updated last 24 April).
Note 131 of 10 April 2020
Note no. 131 of 10 April 2020 has the objective of making workplace conduct uniform and consistent including due to the evolution of the pertinent emergency regulatory framework. A regulatory framework which, as should be recalled, has:
According to the INL inspection activity will be primarily focussed on implementation procedures, by the employers, of organisational and management procedures set up by the authorities and subject matter of the aforesaid Protocol.
It was further explained that the professionalism of the inspectors may be useful also in terms facilitation, mediation, deflation and verification of the processes for using public resources dedicated to support for families, workers, companies and credit, such as those to access social safety nets.
Note 149 of 20 April 2020
With the subsequent note no. 149 of 20 April 2020, INL provided further explanations concerning its inspectors’ control procedures on observance of the conditions required to continue production, industrial and commercial activities.
The note states that the Inspectors must perform inspection activities in close collaboration with the competent offices of the Local Healthcare Agencies, and with which they must previously establish a plan containing lists of companies to focus controls on. This is also envisaged to make it easier to correctly identify the objectives to pursue. However, should the inspectors find themselves faced with clear violations of a certain seriousness and urgency, requiring immediate on-site inspections, they may still perform them even without compliance with the aforesaid procedure.
In addition, the note specifies that for these types of inspections, the selection of inspectors to use must primarily be done on a voluntary basis and, above all, they must be provided with personal protection equipment suitable for the purpose.
Lastly, the note contains annexes such as (i) “guidelines for inspections on the anti-contagion protocol”, (ii) a report form for access and inspection entitled “Covid-19”, (iii) a list of personal protection equipment (PPE), with relative instructions for use for inspection personnel and, lastly, (iv) a check list with the inspections to perform; this is a type of questionnaire with yes/no answers to be filled out by the inspector.
In terms of punishment, if the inspectors find failure to comply with one or more of the prevention measures in the “Protocol”, they will not proceed by imposing a sanction on the employer. They must transmit the results of the inspection to the competent Prefecture, i.e. the access report and filled in check list, summarising the omissions and/or failures they found for adoption of any pertinent measures. It is then up to the Prefecture, based on this report, to adopt any measures, including of an interdictory nature, applied to the company.
