COVID-19 hits Italy – Q&As for global employers

Italian government has published a number of decrees since the Covid-19 outbreak. They introduce a number of restrictions that have changed the routine of the citizens and companies. As the situation is aggravating, a number of derogations are enforced from the Italian labour and employment rules that apply under normal circumstances. The main topics of concern for global employers are: home working, holidays, paid leave and sickness, data protection, health and safety at work, state salary support measures, redundancies. To assist global employers operating in Italy to cope with the current abnormal situation, we have prepared a list of the most frequently asked questions on these topics.

HOME WORKING

1. Can the employer unilaterally impose home working, without a previous agreement with the relevant employees?

Yes, it can. Employers are allowed to do so through a self-declaration to be uploaded via the web portal of the Italian Ministry of Labour.

2. Is there any other obligation to be fulfilled by the employer in case they impose home working?

Yes, there is. Employers must send to the home workers a health and safety information notice by using the form made available by the relevant public authorities (INAIL). This notice can be sent also via web/email. 

3. Is it necessary to reach an agreement with the trade unions prior to implementing home working?

No, it is not. Anyway, it would be recommended (in order to keep good relationship with the trade unions in a critical moment) to inform the relevant trade unions, if any, in advance. 

4. Is it possible to impose home working to an employee despite his/her refusal? Can the refusal lead to disciplinary sanctions? 

Since there is no need to reach a previous agreement with the employees, it seems reasonable that, due to the current situation, employees cannot refuse home working. The possibility/appropriateness to issue disciplinary sanctions should be assessed on a case-by-case basis. 

5. Can the employer refuse to comply with a request of home working made by an employee who is afraid to get infected?

The employer has the duty to implement home working where this is possible and whenever the presence of the employee at the office is not essential. As such, resorting to home working no longer depends only on employees’ requests. 

6. Can the employer ask to the employees to use their own devices in order to perform home working activities?

Yes, but it must be underlined that the employer is responsible for the safety and proper functioning of the technological tools used by the employees for carrying out their working activity. In any case, trade unions may request a further employers’ support (e.g. pc to every employee and internet connection). 

7. Can any software or other remote-control devices be installed on workers’ PC or electronic devices?

Yes, but, they require the achievement of a prior agreement with the trade unions or a prior authorization by the relevant Labour Law Office.

8. Are home workers entitled to be paid for overtime? 

Despite under Italian law this point is not specifically regulated, in principle if overtime is requested or authorized by the employer home workers may be entitled to be paid for the extra-hours actually worked. 

9. Can employees who are sick work through home working?

No, because their condition entails that their employment relationships are suspended. As such no working activities may be carried out (neither through home working modalities). 

10. Can the employee working from home ask for holidays or paid leaves?

Yes, he can.

HOLIDAYS, PAID LEAVE AND SICKNESS

1. Can the employer unilaterally impose to the employees to use holidays and/or paid leave?  

Italian law is silent on this issue and the case law precedents are conflictual. In light of the exceptional circumstances and the predominant need of safeguarding the health and safety of employees, many authors are taking the view that holidays and/or paid leaves can now be imposed unilaterally by the employer to employees, but please note that this approach is not water tight. In fact, it is debatable whether the employer is in the position to unilaterally impose holidays and/or paid leaves without the relevant employee’s consent, considering that under general principles of Italian law on holidays and/or paid leaves are to be agreed by the employer and the employees according to the principles of correctness and good faith. In light of the above, whenever is possible an agreement with the trade unions and/or the relevant employees is recommended. 

2. When the employees have the right to be on sick leave?

Employees have the right to take sick leaves in case they are effectively sick due to the Covid-19 infection or, even if there are no symptoms, in case they are in quarantine by order of the public authorities (e.g. one of their cohabitants is sick due to the Covid-19 infection). 

3. Is there, in relation to Covid-19, any special leave for employees with children? 

Yes, there is.

4. Special paid leave for parents with children up to 12 years (as alternative to a bonus of 600 euros for baby-sitting services, to be used by the end of 2020)

During the year 2020, for parents with children up to 12 years old or even older if disabled, a special leave of maximum 15 days (continuous or in block) for each family and only for one of the parents  is provided.

During this period, it is recognised to the mother or to the father who recur to this paid leave an indemnity equal to the 50% of his/her monthly salary.

5. Unpaid leave for employees with children from 12 and up to 16 years old

Employees with children from 12 and up to 16 years old are allowed to not go to work during the whole period of suspension of schools and educational programs, provided that the other parent does not benefit from other forms of salary support for the suspension or interruption of the working activity or he/she is unemployed. 

6. Is there, in relation to Covid-19, any special leave for employees with a disabled family member? 

Yes, there is. Employees with a disabled family member are entitled to additional 12 days of paid leave to be spent during the months of March and April 2020. 

DATA PROTECTION

1. Is it possible to collect information about the health conditions, transfers, life habits of the employees, also by questionnaires?

According to the Italian Data Protection Authority, employers must refrain from collecting in a systematic and generalized way, also through specific requests to individual employees or unauthorized investigations, information on the onset of any employees’ symptom or on their contacts or in any case information falling in the employees’ private sphere. However, collection of information on employees’ health conditions and/or transfers is allowed if (and to the extent that) there is a legal obligation specifically authorising the employer to do so. In this respect, please note that under the so-called “Shared Protocol to contrast and contain the spread of Covid-19 in working environments” , temperature screening and questionnaires to employees may be carried out before employees’ access to the company premises, provided that the relevant data protection provisions are complied with. 

2. Can the employees be required to sign a self-certification guaranteeing their good health condition? 

Yes, this is possible. However, since the answer (even a negative one) on a questionnaire is a processing of personal data, the applicable data protection provisions shall be complied with.

It would be preferable to only inform the employees that they should not access the company premises if they do not meet certain conditions. 

HEALTH AND SAFETY AT WORK

1. Do the health and safety documents (e.g. DVR) have to be updated to the new information and instruction about the prevention from Covid-19 infection?

Yes, the health and safety documents need to be updated in order prevent the spreading of the Covid-19 infection by including all the information given by the Italian Ministry of Public Health such as washing several times a day the hands and sneezing into the crease of the elbow. 

2. Does the employer need to provide employees with any form of sanitary device?

Yes, it does. The employer, must implement all the sanitary measures in force including: (i) make available gel for hand washing; (ii) implement surface cleaning with alcohol based disinfectants; (iii) guarantee at least a distance of one meter between workstations. 

3. Does the employer have to limit the physical access at work to a reduced number of employees, in order to guarantee the respect of the safety distance?

Yes. In light of the specific rules implemented due to the Covid-19 outbreak, only the essential activities are allowed to continue. Therefore, in relation to the employees that the employer can allow to be present at the company premises, it is necessary that: (a) such employees perform essential activities, and b) the rules on health and safety provided by the company doctor are complied with. 

4. Does the employer have to adopt specific protocols of sanitary surveillance, taking into consideration the delicate conditions of some employees and the risks related to the specific jobs?

Yes, jointly with the company doctor it must be provided a special protocol on health surveillance (e.g. implementation of medical visits) taking into account some delicate conditions of certain employees. 

5. Are there any other specific rules for employers in terms of health and safety? 

Yes, there are (e.g. sanitation of the workplace, also by resorting to state salary support procedures, limit the movements of employees in the context of the workplace, etc.). For an overview of the health and safety rules that employers must comply with, please click here. 

 STATE SALARY SUPPORT MEASURES

 1. What kind of state salary support measures have been introduced in connection with the Covid-19 outbreak, if any? 

 Specific state salary support measures (which provide for a quicker and simpler way of access to these instruments compared to what is generally provided under Italian law) have been implemented. The following measures have been introduced:

(i) ordinary state salary support (CIGO);

(ii) ordinary allowance (assegno ordinario); and 

(iii) exceptional state salary support (CIGD).

2. Who can apply the ordinary state salary support (CIGO)? How does it work?

The ordinary state salary support (CIGO) can be applied by certain employers of the industrial sectors provided by Italian law. Please find below the main rules of such state salary support measure: 

(i) maximum duration of 9 weeks over the period from 23 February 2020 to the end of August 2020; 

(ii) simplified and quicker information/consultation procedure with the competent unions/works councils, that can be carried out virtually

(iii) no additional social security contributions must be paid by the relevant employer.   

3. Who can apply the ordinary allowance (assegno ordinario)? How does it work?

Employers not falling within the scope of application of the ordinary state salary support (CIGO), including those enrolled to the so-called FIS with more than 5 employees, can apply. Please find below the main rules of such state salary support measure: 

(i) maximum duration of 9 weeks over the period from 23 February 2020 to the end of August 2020; 

(ii) simplified and quicker information/consultation procedure with the competent unions/works councils, that can be carried out virtually;

(iii) no additional social security contributions must be paid by the relevant employer.   

4. Who can apply the exceptional state salary support (CIGD)? How does it work?

The exceptional state salary support (CIGD) can be applied by employers not covered by any other state salary support measures. Please find below the main rules of such state salary support measure: 

(i) maximum duration of 9 weeks (that in certain specific areas can last up to 13 weeks) over periods from 23 February 2020;

(ii) to be checked case by case if a union agreement is needed (this may vary depending region by region).

5. Is it necessary the prior use of accrued holidays in order for the employees to benefit from the abovementioned state salary support measures? 

No, it is not. In order to benefit from the special state salary support measures introduced by the new emergency legislation (i.e. CIGO, assegno ordinario and CIGD) the prior use of the accrued holidays is not required.

TRANSFERS

1. Is it forbidden to go out in order to go to work?

No, it is not. However, if requested by the public authority, employees have to show a self-certification in which they declare that they left their houses for “justified working reasons”. 

2. What does “justified working reasons” mean?

It means that employees must be able to prove that they are going to or returning from work, also by means of the self-certification mentioned under point 1 above. 

REDUNDANCIES

1. Is there the possibility to implement collective or individual redundancies?

Individual and collective redundancies are forbidden for a period of 60 days from 17 March 2020. However, this does not  include the mutual termination of employment. In the same period the pending collective redundancies procedures implemented after 23 February 2020 are suspended. 

2. Are there any other obstacles to redundancies?

The Liquidity Decree provides for the possibility for companies to get loans from banks guaranteed by the State through SACE S.p.A. (the Italian export credit finance agency), subject to certain conditions,  including that the employer must undertake the “obligation to manage employment levels through union agreements”.

As such, the beneficiary employers would need to reach agreements with the unions in any case of redundancies (both individual and collective) and, most likely, the unions shall have no interest in entering into agreements providing for redundancies only. As a result, the beneficiary employers will be unable – or at least severely restricted – to manage redundancies. In the worst case scenario, this obligation might also extend to the need to convert into permanent fixed-term and/or staff-leased employees. As to the duration of this obligation, the law is silent and one possible interpretation could be that it shall need be in line with the duration of the relevant guaranteed loan (which is max 6 years).

OTHER PROVISIONS

1. Is there any special kind of indemnity for employees who, during March 2020, are working in their workplace? 

Article 63 of the Cura Italia Decree (click here) provides a bonus equal to Euro 100 net to companies and employees that fulfil certain conditions

This amount of Euro 100 is provided only with regard to the month of March and it must be calculated on the basis of the hours/ days actually worked.

The amount is subsidised by the state and the employer can carry out the payment from April 2020. 

2. Can employee who have to go to work refuse to do so due to fear for his/her safety? 

This may in principle amount to an unjustified absence (e.g. if the relevant health and safety measures are guaranteed by the employer and there is no infection among the workforce). However, we would not recommend to adopt disciplinary measures in these circumstances as this might trigger bad reputational impact. Therefore, a potential approach could be to consider the relevant employee on holiday.