The Italian government has enacted what is known as the “Green Pass bis Decree” (Law Decree no. 127 of September 21, 2021), introducing urgent measures to ensure the safe performance of public and private work through the extension of the scope of application of COVID-19 green certification (“Green Pass”) and the strengthening of the screening system.
The requirement to possess and show a Green Pass to access workplaces—which will affect both public and private workers—will take effect as of October 15, 2021, and will be in force until December 31, 2021, the end date (at this time) for the state of emergency.
Italy, therefore, will be the first European country in which it will not be possible to enter a workplace without a valid Green Pass. A Green Pass is issued after (i) the first dose of vaccine and then is valid from the fifteenth day after that first dose until the date scheduled for the second dose (in the case of a double dose vaccine), and after the second dose for 12 months; or (ii) recovery from Covid-19 infection (valid for 6 months); or (iii) performance of a rapid molecular or antigenic test with a negative result (valid 72 hours in the first case and 48 hours in the latter).
Below are the main forecasts, regarding the private labor sector, though, of course, the situation is still evolving and further news is bound to emerge in the coming weeks.
THE MAIN PROVISIONS IN THE PRIVATE EMPLOYMENT SECTOR
To whom and where does the Green Pass requirement apply?
Anyone who carries out activities as an employee or self-employed in the private sector is required to possess a Green Pass and exhibit it upon request to access the workplace.
This requirement does not apply to those exempt from vaccination on the basis of appropriate medical certification.
How do the controls take place and who performs them?
As in the public sector, private-sector employers will be responsible for ensuring compliance with the provisions. By October 15, employers must have a system in place establishing procedures for organizing the controls, which preferably will be carried out at the time of access to the workplace and, if necessary, on a random basis as well. In addition, employers will be required to identify formally those responsible for investigating and challenging any violations.
What are the potential sanctions for employees and employers?
The Decree provides that employees are required to have Green Passes. An employee who does not have one shall not be “suspended” from work (as provided in the previous draft of the Decree), but rather shall be “considered absent without justification”.
A worker who is absent without justification does not receive a salary (“nor other remuneration or emolument”) starting the first day that they are prevented from accessing the workplace due to the lack of certification.
This “absence status” may have significant impact on both the employee and employer sides. Note that while an employee whose employment relationship is suspended is not required to comply with diligence and loyalty obligations (articles 2104 and 2105 of the Italian Civil Code), an employee who is absent without justification is required to do so.
For employers, the amendment streamlines company procedures. While a suspension is a measure that an employer can take and communicate to the employee concerned, unjustified absence is simply a fact of which the company takes note, without necessarily communicating anything to the employee.
Thus, on the one hand, the Legislature intends in principle to alleviate the burden on the employer of sending daily communications to those who are not in possession of an appropriate Green Pass; on the other hand, it is tightening restrictions for workers without Green Passes, who, while absent from work, will still remain subject to the constraints of the employment relationship.
Based on the Decree, there are no disciplinary consequences for not having a Green Pass and the right to job retention is guaranteed.
Moreover, a fine ranging from EUR 600 to 1,500 is envisaged for any worker who accesses the workplace in violation of the Green Pass requirement. Employers who do not ensure compliance with the rules and do not arrange for verification procedures will be subject to fines from EUR 400 to 1,000.
CONCLUSIONS
Hopefully, these measures will restore the economy and allow a gradual return to normalcy by avoiding a repeat of the situation of last fall, when many workplaces were forced to close.
However, the Decree does leave some issues open, such as the fate of unvaccinated employees who decide not to follow the provisions set forth in the Decree. It also requires employers to comply with a series of privacy-related obligations to ensure proper implementation of the Decree itself.
For example, an employer will have to (i) process data without storing them and for the sole purpose of verifying the validity of the Green Pass, in accordance with the rules on the protection of personal data (and above all the principle of minimization); (ii) draw up a complete privacy policy; and (iii) specifically identify the persons in charge of carrying out the controls.
