COVID-19 and Employment contracts in Italy

The current stage in Italy (end of June) is called Stage 3 and according to the last Prime Ministerial Decree (DPCM) it is expected to end on October 15, 2020.

However, it is difficult to establish the next stages  with certainty because the Italian government has not presented an overall plan but  issues specific DPCMs from time to time. Furthermore, in the Prime Ministerial Decree, the government is leaving regional authorities with a lot of space to decide timing and conditions of re-opening.

In general in this stage almost all the private working activities are open with some exceptions, but smart work is still strongly encouraged for all tasks that can be remotely managed.

In the Italian labour law system, the employer has a general duty to guarantee a safe working environment (art. 2087 of the civil code). To fulfill this obligation, the employer must prepare and update a risk assessment document (DVR- Documento di Valutazione dei Rischi) which identifies all the appropriate precautions and prevention tool considering the specific risks of the work activity,.

With reference to the Covid 19 emergency, employers for whom the epidemiological risk is not strictly linked to the activity must not modify their DVR, but must in any case guarantee their employees safety within the workplace. To this end they must comply with the protocols for health and safety protection of workers signed by the government, employer’s associations and trade unions.

A first protocol applicable to all business sectors, signed on 14^th  March, was integrated on 24^th  April and flanked by 2 specific protocols for safety in logistics and transport sector  and for safety on construction sites.

These protocols point out the safety measures to be implemented to ensure a safe working environment (e.g. minimum safety distance or alternative protective measures such as safety screens; cleaning and hygiene facilities, routing prescriptions; disinfection etc.).

Employers operating in sectors that are particularly at risk from the pandemic (e.g. health sector, but also large retailers etc.) must instead update their DVR, considering the Covid 19 risk and taking all the appropriate measures to prevent contagion with respect to their premises and to their employees’ specific activity.

With reference to these activities, it is interesting to note that the INAIL (National Institute for Work Insurance) has provided for the possibility of considering Covid 19 infection as an occupational disease.

I can take the temperature of my personnel at the entrance of the building and I can ask my personnel to answer a limited questionnaire.

Employers’ associations and  unions have signed a Protocol (Protocol 14^th March – 24^th April 2020; supra, question 3) for regulating security measures to combat and contain the spread of the COVID -19 virus.

According to the Protocol, the employer can prevent entry for workers who:

• have the temperature above 37.5 degrees centigrade; or
• come from risk areas according to WHO or
• in the last 14 days had contacts with people tested positive for COVID-19.

The employer can then measure the temperature of the personnel and ask them  for a declaration including  the above information.

However, the employer must respect the right to privacy and dignity of the worker and in collecting and processing such information employer must comply with the rules and principles regulating personal data processing (only the data which are necessary, adequate and relevant to the purpose can  be processed  by employer).

According to the general rule, valid also in the current pandemic, the employee cannot refuse to perform his job unless for justified reasons, but the lack of safety in the workplace is a textbook case of justified reason.

Insofar, if an employee refuses to come to work because the employer has not taken all the measures provided for in the aforementioned protocols (supra, question 3), his refusal will be justified and the employer will have to continue paying him. If, on the other hand, the employee refuses to work out of simple fear, despite the employer having adopted all the measures provided for in the protocols, his refusal will be unjustified, he may not be paid and also suffer disciplinary sanctions.

However, different rules apply to disabled workers suffering from immunosuppression or oncological diseases. Until July 31, they can stay home from work and receive an ordinary disease treatment.

In general the answer is no, but until the end of the state of emergency (31^st July) pursuant to the Law Decree of 17 March 2020, no. 18, converted into law no. 27 of 24 April 2020, employees with disabilities or who have a person with a disability in their family, have the right to perform their job in smart-working, provided it is compatible with the characteristics of their tasks.

In addition, until the end of the state of emergency, pursuant to the Law Decree of 19 May 2020, n. 34, parents employed in the private sector, with at least one child under 14 years of age, will have the right to smart-working  provided that this modality  is compatible with the characteristics of the work and that there is no other parent who is already a beneficiary of other support measures and no non-working parent.

For the public sector, smart working is the ordinary way of carrying out the work performance until the end of the COVID-19 state of emergency and possibly until 31^st December 2020.

We do not know what will happen after the end of emergency period, but the government is discussing about new regulation to promote smart-working.

We may guess that employees who were granted the right to  work  from home during the emergency period will benefit of this (possible) new regulation.

• Keep an eye on the evolution of the legal and health framework to adapt your measures to the rapidly evolving rules;
• Prepare a communication plan to share any critical information about the business, the market and changes within the workplace;
• Communicate the implemented measures to all employees, allowing them to suggest new ones and try to make them feel safe.

Only very few changes have been made since June 2020.

Access to the existing ‘ordinary’ short-time work system called ‘Cassa Integrazione’ (CIG, CIGO, CIGS CIGD, FIS) had been expanded and simplified with two temporary decrees (‘Cura Italia’ and ‘Rilancio’); in the meantime both of them have been transformed into permanent laws.

At the moment:

• employers in all sectors can access;
• employers can access even if they have less than 5 employees;
• no seniority of workers’ service is required;
• the employer can access regardless of whether he has employees with fixed term contracts;
• a general reason, ‘Covid 19 emergency’, is accepted for all employers;
• there is no need for a union agreement, a simple consultation is enough;
• no admission fee is due;
• the allowance can be paid by the social security agency (INPS) directly to the workers.

The emergency intervention can last for a maximum period of 18 weeks between March and October (plus 13 more weeks for employers in the ‘red zones’, that experienced an earlier lockdown)

On the other side, companies are not allowed to dismiss workers for economic reasons until August 17, nor to undertake collective redundancy procedures.

A further extension of the maximum period of the emergency intervention is currently under discussion, such as a ‘symmetric’ extension of the prevention of termination. The most probable hypothesis is that both will be limited to the sectors most affected by the crisis (tourism, entertainment etc.).

In general terms, an employer cannot force any employee to accept a reduction in his working hours and the corresponding salary; it could be done just by an individual or collective agreement.

By the way, the Italian Social Security System offers different tools to cope with temporary crisis situation. In particular, in Italy has long been possible to activate a short-time working system called ‘Cassa Integrazione’ (CIG, CIGO, CIGS CIGD, FIS).

Through that system, the employer may reduce its employees’ work for a certain period of time. When they are not working, employees receive 80% of their salary, with a maximum set for 2020 of  € 1,124.04 net per month, paid by social security agency (generally INPS).

According to the usual rules, access to the short-time working system could only be granted under the following conditions:

• the employer have to work in specific business sectors (oil & gas, buildings and constructions etc);
• the employer must have more than 5 employees;
• each concerned worker must have been employed for at least 90 days;
• the employer must not have hired fixed terms contract workers in recent times;
• the employer must specify his reasons to access the system within a close number (e.g. natural events / shortage of raw materials / crisis or corporate reorganization ‘certified’)
• the employer must sign an agreement with trade unions representatives;
• the employer must pay an admission fee to the social security agency (INPS);
• the employer has generally to pay the short-time allowance to his workers and can therefore compensate it with the payments due to the social security agency;
• the employer can access to the system for different periods of time depending on the reasons of the application and the business sector.

For the Covid-19 emergency, access to the short-time working system has been significantly expanded and the necessary requirements have been deeply simplified (DL n.18/2020).

• employers in all sectors can access;
• employers can access even if they have less than 5 employees;
• no seniority of workers’ service is required;
• the employer can access regardless of whether he has employees with fixed term contracts;
• a general reason, ‘Covid 19 emergency’, is accepted for all employers;
• there is no need for a union agreement, a simple consultation is enough;
• no admission fee is due;
• the allowance can be paid by the social security agency directly to the workers;
• the emergency intervention (following the DL 34/2020) can last for a maximum period of 18 weeks between March and October (but it can be added to ‘ordinary’ interventions ).

Foreign companies can apply for short-time work allowance as long as their employees in Italy are subject to Italian social security.

The Italian Government passed many other measures to assist companies facing the COVID-19 crisis such as tax delays and loans on favourable terms. Specific measures has been set for independent contractors, start-ups, agricultural sector and cultural sector companies.

No special rule has been adopted for this case, to which general rules must apply despite the Covid-19 emergency.

If the job offer is not classified as ‘firm’ and has not yet been accepted by the worker, the employer may withdraw it unless bad faith is proved; which seems difficult considering the emergency.

If the offer has been accepted, the contract is binding.

However, if a probation period has been provided in writing, the employer could terminate the contract by the end of that period and the termination would probably be considered legitimate (cf. Cass. 1762/2000).

In general terms, the employer could also terminate the contract on economic reasons, but the dismissal would be suspended at least until 17^th of August (see infra, question n. 6)

Finally, it’s always possible to postpone amicably the start of the employment.

Furthermore, as mentioned above, short-time work can be implemented for new employees as well (see supra, question n. 1).

Yes, in general terms, in Italy, the exact determination of the holiday period for each worker is up to the employer, but he has to try to fulfill the worker’s requests and cannot refuse arbitrarily to grant holydays in the desired period.

On these basis, at the beginning of the Covid-19 emergency, lacking specific rules, many workers were ‘forced’ to take time off to face the employers’ business activities contraction. That choice has been considered legitimate.

After the approval of the first measures to help companies cope with the crisis (supra, question 1), the employer can force his employees to use vacation days only when every other ‘social security tool’ (“Cassa Integrazione” first) is exhausted.

In Italy all kind of schools will be probably closed until September. Exception will be granted for nurseries and kindergartens during the summer.

To help workers to take care of their children under the age of 12 (or even disabled people), the “Rilancio” decree has granted:

1. the right, for one of the two parents, to an extraordinary leave of 30 days with 50% pay covered by the social security agency (INPS);
2. as an alternative to the leave, a contribution of 1,200 euros, paid by INPS, to purchase babysitting services. The contribution rises to 2,000 euros for health workers.

The contribution can be requested by accessing the institution’s portal (https://www.inps.it/nuovoportaleinps/home.htm) and can also be requested by independent contractors registered and insured by INPS.

In addition to the extraordinary leave, workers can stay home to care for their children without any consequences for keeping their job, but also without any payment.

Anyway, the employer is not required to pay the worker who does not work in order to take care of her/his children.

Throughout the lockdown period, work from home has been always promoted (and allowed) in all business sectors.

Prior to the Covid-19 emergency, an individual written agreement with the employee was needed to switch to so-called smart-working.

In order to deal with the Covid emergency, since the beginning of March, the employer can force his employees to work from home, providing the necessary tools.

On the other hand, disabled or otherwise ‘fragile’ workers can force their employers to allow them to work from home if it is compatible with their job.

In Italy it is not permitted to re-open activities earlier than required by national and, in some cases, regional laws.

All companies that have remained active or have been allowed to re-start after lockdown, must today comply with the protocols for health and safety protection of workers signed by the Government, companies and trade unions.

A first protocol applicable to all business sectors, signed on 14th March, was integrated on 24^th  April (http://www.trovanorme.salute.gov.it/norme/dettaglioAtto?id=73916&articolo=16)  and flanked by 2 specific protocols for safety in logistics and transport sector  (http://www.trovanorme.salute.gov.it/norme/dettaglioAtto?id=73916&articolo=18)  and for safety on construction sites (http://www.mit.gov.it/sites/default/files/media/notizia/2020-04/Protocollo%20cantieri%2024%20aprile%2020.40.pdf). These protocols indicate the safety measures to be implemented to ensure a safe working environment (e.g. keeping safe distance and, where not possible, providing alternative protective measures; minimum cleaning and hygiene facilities etc.).

Not in all cases.

The ‘Cura Italia’ Decree (art. 46) suspends any collective redundancy procedure underway until August 17th and prohibits to start any new one; it also prohibits, until the same date, the termination of individual contracts for economic reasons (so called “giustificato motivo oggettivo”).

The following dismissals are still allowed on general rules:

1. dismissals for disciplinary reasons;
2. termination of fixed-term contracts upon expiry;
3. executives’ contracts termination;
4. termination within the probation period (supra, question n. 2).

This provision, although balanced by those relating to the short-term work system (supra, question n. 1), is much discussed and criticized by companies and scholars. Nevertheless, it has been confirmed by the ‘Rilancio’ Decree and its effects have been extended until mid-August (the original provision were binding until mid-May).