INPS, with its circular letter no. 45 of 25 March 2020, provided operating instructions regarding the use of parental leave for the COVID-19 emergency and increase of leaves as per the law no. 104 of 5 February 1992 both included in Decree Law no. 18 of 17 March 2020.
Reference normative framework
The circular letter in question concerns the special measures introduced by articles 23 and 24 of the Decree Law 18 of last 17 March (so-called “Decreto Cura Italia”, hereinafter “Decree”), aimed at making it easier for families and workers to handle the epidemic emergency in progress.
Specifically, article 23 of the Decree introduces an extraordinary parental leave to take care of minors during the period when pre-school educational services and scholastic activities of all schools are suspended ordered by the Presidential Decree of 4 March 2020.
The leave, for a total of 15 days, can be used by workers employed in the private sector, workers enrolled in the INPS “Gestione Separata” pension scheme, self-employed workers registered with INPS and employees of the public sector. Alternatively to the aforesaid leave, parents with children not over age 12 have been given the possibility to use a bonus of 600 euro to purchase baby-sitting services.
Instead, article 24 of the Decree, includes an increase in the number of days of paid leave as per law no. 104 of 5 February 1992 for an additional 12 days which can be used in the months of March and April 2020.
These measures are also applicable for adoptive and foster parents or those who have minors in temporary placements.
Period to use leave and relative indemnity
The Institute with the circular letter in question, set out the operating procedures for being able to use the leave, specifying, at the same time that parents employed in the public sector must follow the instructions provided with the Public Administration where they are employed.
As mentioned, use of the extraordinary parental leave, may occur for a continuous or fractioned period, however not longer than a total of 15 days starting from 5 March 2020 is alternatively granted to just one of the parents for family. This requires, for this benefit, that no parent benefits from wage support instruments provided in the event of suspension or termination of work or another parent unemployed or not working.
Operating procedures for using the leave
The new COVID-19 leave guarantees greater protections compared to those that the parents can benefit from for care of their children using ordinary parental leave. Specifically, the new parental leave grants parents with children not older than 12 an indemnity equal to 50% of their wages, calculated as stated by article 23 of the Legislative Decree no. 151 of 26 March 2001. INPS specifies that (i) calculation of the days and payment of the indemnity occurs with the same procedures envisaged for payment of parental leave and (ii) the protection is granted even if the individual couple limits have been reached included in the specific laws on parental leave.
Instead, parents with children between ages 12 and 16, despite being granted leave, i.e. the right to be absent from work for the period educational services and schools are closed, is not granted payment of any indemnity.
Those who intend to use the leave must:
Greater protections are also provided for parents enrolled in “Gestione Separata” compared to ordinary parental leave. The COVID-19 leave guarantees parents with children not over age 12 an indemnity equal to 50% of 1/365 of their income, identified according to the calculation basis used for determining maternity leave.
Similarly also for self-employed workers registered with INPS the protection is expanded from an indemnity of 30% of pay provided only in the case of children up to age 1, to an indemnity totaling 50% of daily conventional pay established annually by law, based on the type of self-employment carried out, for worker parents with children up to age 12.
The Decree also includes an alternative benefit for subjects who receive the above leave who may request a bonus for baby-sitting services up to a maximum amount of 600 euro which, can reach 1,000 euro for workers in the healthcare, defense and security sector.
INPS, with its circular letter no. 44 of 24 March 2020 provided the operating instructions to be able to request this bonus, specifying that parents with children not over age 12 may benefit, but also those who at the time the application is submitted have already turned 12, as long as by the date of 5 March they were within the required age limit.
This age limit does not apply for children with disabilities in verified serious situations, enrolled with schools of all levels or those at day centers for the disabled.
The Institute, reiterating the contents of the Decree, clarified that the benefit is due as long as the family does not have another parent who is the beneficiary of income support instruments in the event of suspension or termination of their work (for example, NASPI, CIGO, unemployment benefits, etc.) or another parent who is unemployed or not working, with whom an incompatibility exists and ban on accumulation.
Extension of paid leaves as per law no. 104/1992
Article 24 of the Decree, as anticipated, includes an increase in the number of days of paid leave as per the law no. 104/92. Therefore, subjects who have the right to the leaves in question may use, in addition to the three days per month already guaranteed by the aforesaid law, another 12 working days to use in the months of March and April.
INPS specified that the 12 days can also be used consecutively during one month or broken down into hours.
Moreover, the possibility of accumulating various leaves for the same worker is confirmed. Therefore, if the worker cares for more than one disabled person, he/she can accumulate for the months of March and April 2020 another 12 days per dependent disabled person, in addition to the ordinary monthly leave of 3 days.
Article 46 of the Cura Italia Decree, containing urgent measures to contrast the COVID 19 emergency states that “beginning from the date the degree goes into effect starting any proceedings as per articles 4, 5 and 24 of Italian Law no. 223 of 23 July 1991 is prohibited for 60 days and pending proceedings started after 23 February 2020 in the same period shall be suspended. Until this period ends, the employer, regardless of the number of employees, may not withdraw from an employment contract for objective just cause pursuant to article 3 of Italian Law no. 604 of 15 July 1966”. Therefore, from 17 March 2020 until 16 May 2020 there is a ban on starting employee layoff proceedings and pending proceedings started after 23 February 2020 are suspended during the same time period. Moreover, until 16 May 2020, employers, regardless of the number of employees on the job, may not give notices of dismissal for objective just cause. Instead, employers can proceed with dismissal for just cause, dismissal for subjective just cause, withdrawal from a trainee contract at the end of the training period, withdrawal during probation period, dismissal for retirement based on the “Quota 100” law and old age pension, dismissal for exceeding the protection period and being unsuitable for the assigned job and dismissal of managers.
Among the measures that have come one after another in these weeks, this is the right time to make some remarks in light of the novelties introduced with Italian Legislative Decree no. 18/2020 “Cura Italia”, effective as of 17 March 2020.
First of all, it should be noted that in terms of social safety nets, the redundancy scheme included in our legal system is certainly one of the most favorable if compared with the main western countries and therefore a special law should not be necessary except to offer coverage to companies excluded from its benefits at present.
Keep reading Vittorio De Luca’s interview here.
