Decree Law No. 127 of September 21, 2021 (hereinafter, “Decree“), in force since September 22, has introduced the COVID-19 Green Certification obligation (hereinafter, “Green pass”) to all workers in the public and private sectors.
In particular, from October 15, 2021, through December 31, 2021 (the current end of the “state of emergency”), “anyone carrying out a work activity (…) is obliged, for the purposes of access to the places where the activity is carried out, to possess and exhibit, upon request, the COVID-19 Green Certification“. The obligation concerns all those who, for any reason, carry out their work or training or voluntary activities in workplaces, including on the strength of external contracts.
Green pass controls require employers, to:
before October 15, 2021:
from October 15, 2021 to December 31, 2021:
Violation of the above-mentioned obligations may result in the application of administrative sanctions to both employers and workers.
*****
Partners and Associates of the Law Firm De Luca & Partners are available for any further information.
*****
Click here to request the Slides of our recent HR Virtual Breakfast “The return to the company with the Green pass obligation: problems and perspectives“.
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.
Other related insights:
Green Pass in the workplace: decree published in the Official Gazette.
The decree-law that requires to possess and exhibit Covid-19 green certification to access workplaces from 15 October 2021 until 31 December has come into force.
Focus:
With more than 100 participants, the HR Virtual Breakfast organised by De Luca & Partners last 23 September registered considerable interest in the hot topic of the Green Pass: a highly topical issue that worries many employers today.
The meeting, conducted digitally using the Zoom platform, featured talks by Vittorio De Luca, Managing Partner of De Luca & Partners, and Elena Cannone, Managing Associate and Compliance Focus Team Leader at De Luca & Partners.
Several key topics were discussed, resulting in a rich and participative debate.
Speakers Vittorio De Luca and Elena Cannone looked at compliance, obligations and responsibilities, and issues related to introducing the mandatory Green Pass.
15 October is just around the corner, but is your company ready?
If you have doubts and want to learn more, request the slides here by filling out the form below.
Decree Law no. 105/2021 established that, as of 6 August 2021, the COVID-19 green certificate ( Green Pass) is mandatory to access a range of services/activities, including catering services provided by any establishment for consumption at the table indoors, gyms and cinemas, to participate in sports and cultural events and selection procedures.
The Green Pass can be issued:
The Ministry of the Interior, while waiting for clarification from the Government on the obligation of the green certificate for workers, with note no. 4073 of 5 August 2021, established that the certificate was not necessary to access canteens, bars and company clubs. This was subject to compliance with the protocols already in force to prevent and contain Covid-19 infection.
The note stated that for canteens outside the company, however, the green certificate remained mandatory, and workers without it, according to the Ministry’s instructions, would have to consume the meal outdoors or in takeaway mode.
With FAQ published on 14 August on the institutional portal for the Covid-19 green certificate, the Government has made a U-turn on what was outlined by the Ministry of Interior.
It was established that even “for the consumption of meals at the table indoors, workers can access the company canteen or premises used for the provision of food services to employees only if they have the COVID-19 green certification, as in restaurants. The operators of the above services are required to verify the COVID-19 green certificates as instructed by Prime Ministerial Decree of 17 June 2021.” The obligation applies to public sector and private companies.
◊◊◊◊
As of 6 August 2021, access to company canteens and catering premises will be denied to any worker who does not submit the green certificate attesting to vaccination or recovery or the possession of a negative (molecular or antigenic) swab within the last 48 hours.
Other related insights:
Green pass to access the workplace is not conceivable in the absence of compulsory vaccination
In an internal letter of the director general sent by e-mail to the directors of the system’s local and sectoral associations, Confindustria expressed its favourable opinion on the Covid-19 green certificate (better known as green pass) to access workplaces.
According to the position taken by Confindustria, the presentation of the green certificate should be part of the obligations of diligence, fairness and good faith on which the employment relationship is based. Consequently, the employer, where possible, could assign the non-vaccinated worker to tasks other than those typically carried out and pay them accordingly. If this is impossible, the employer should be allowed not to admit the employee to work, with the suspension of pay if they are removed from the company.
Together with the safety protocol updated on 6 April and the protocol on vaccination in the workplace signed on the same date, such an initiative aims to protect workers’ health and safety and the production process. Among other things, the proposal would be justified given the serious concern about a possible third pandemic wave that could lead to a new work shutdown and the consequent need for yet another extension of the Covid-19 social safety nets.
However, legally, this has several critical issues.
First, as for individual rights, it is necessary to consider Article 32 of the Constitution on the “right to health”, which represents a kaleidoscope of multiple forms of health protection. The article in question firstly states that “the Republic shall protect health as a fundamental right of the individual and in the interest of the community”, and then specifies that “no one may be obliged to undergo a given medical treatment except by provision of law”.
This constitutional provision protects health as a fundamental right of the individual and as an interest of the community. It allows the imposition of medical treatment if intended, as specified by the Constitutional Court, “to preserve the state of health of the person subject to it, and the state of health of others” (see ruling no. 5/2018 of the Constitutional Court).
Continue reading the full version published in Guida al Lavoro of Il Sole 24 Ore.
