On 21 September 2021, Law Decree 127/2021 was published in the Official Gazette, setting out the following obligations and undertakings relating to the workplace in the private sector for the period from 15 October to 31 December 2021. This article examines these provisions and answers some frequently asked questions.
- any person carrying out a work activity must have obtained and must present their green pass on request in order to gain access to their place of work;
- the obligations related to mandatory vaccination already provided for school employees, health professionals and employees at residential, social care and social health facilities are confirmed (for further details please see the answer to the below question “What are the obligations in relation to employees working in healthcare facilities?”);
- the obligation under the first point above applies to anybody who carries out work, training or voluntary activities in the workplace, regardless of the kind of relationship, and includes those engaged through service contracts;
- those exempt from the vaccination are not obliged to obtain and show a green pass if they can provide a medical certificate that meets the criteria defined by the Ministry of Health;
- employers must:
- also verify compliance with the requirements provided for access to a workplace in relation to providers;
- define by 15 October 2021 the operating procedures for checks, including sample checks, providing for priority, where possible, that such checks are carried out at the time of entry to a workplace; and
- formally identify the persons responsible for ascertaining breaches of obligations.
- green pass checks are carried according to the provisions of the Prime Ministerial Decree (DPCM) of 17 June 2021 2021 (via the VerificaC19 app);
- in order to protect the health and safety of employees in the workplace, employees who have not obtained a green pass or who are found without it at the point of entry to or in a workplace, are considered absent from work without justification until such a pass is presented. The rule is valid until 31 December 2021; this will not incur disciplinary consequences, save for misconduct, and the right to employment will be maintained. No salary or other remuneration or consideration, however named, is payable for the period of absence;
- for companies employing fewer than 15 employees, if the green pass is not presented within five days, the employer may suspend and replace the employee for a period not exceeding 10 days, and not beyond the aforementioned date of 31 December 2021;
- employers and employees who violate the obligations listed above are subject to the following:
- an administrative fine of between €400 and €1,000 for lack of verification and adoption of organisational measures, and between €600 and €1,500 for access to a workplace, unless the occurrence constitutes a criminal act. If the violation includes the use of a vehicle, the penalty is increased by up to a third. Where the violation is repeated, the fine is doubled.
- penalties are applied by the local government office (prefetto) and are laid down by officials, officers and agents of the state or of the regions, provinces and municipalities.
Do the obligations of verification, adoption of organisational measures and access to the workplace also apply in relation to self-employed workers (consultants, contractors, etc)?
Yes – in view of the scope and objectives of the decree and the wording used in it (article 3, paragraphs 1 and 2).
Do the obligations of verification, adoption of organisational measures and access to the workplace also apply to owners, directors and members of administrative and control bodies (such as a board of directors)?
The decree is addressed to those who carry out work or collaboration activities, regardless of the type of employment (article 3(1) and (3)). Bearing in mind the scope and objectives of the decree, the necessary reference to the regulations protecting health and safety at work and the relevant definitions (article 2087 of the Civil Code and Legislative Decree 81/2008), it is deemed that the obligation also extends to directors who carry out operational activities and to company owners who access the workplace.
Do the obligations of verification, adoption of organisational measures and access to the workplace replace the precautions (social distancing, mask, pre-screening, etc) already in place in compliance with national anti-covid-19 protocols?
No – in the absence of a specific provision in the decree, the instructions contained in the emergency regulations and in the national protocols are still valid until the end of the health state of emergency (31 December 2021). Therefore, the obligations provided in the decree are additional.
It should be noted that article 29 bis of Law Decree 23/2020 provides that the adoption and application of the requirements laid down in the national protocols against covid-19 are considered compliant with the obligations of protection under article 2087 of the Civil Code (which has implications in terms of civil and criminal liability also under Legislative Decree 231/2001) in relation to covid-19 infection at work.
How do the obligations of verification, adoption of organisational measures and access to workplaces provided in the decree coordinate with the indications of the Data Protection Authority?
The current position of the Data Protection Authority is expected to be reviewed, as expressed in recent decisions and opinions (and FAQs), whereby a vaccination certificate cannot be deemed mandatory to allow access to the workplace or services, or the performance of an employment relationship, if not provided by a specific law.
The reference in the decree to the procedures provided for in the DPCM of 17 June 2021 (via the VerificaC19 app), however, suggests a ban on the indiscriminate recording of data related to green pass checks.
What are the obligations in relation to employees working in healthcare facilities?
The obligations in question are regulated by article 4 bis of Law Decree 44/2021 and concern all individuals, including external ones, who carry out their work in any capacity in:
- hospitality and long-term care facilities;
- assisted healthcare residences;
- rehabilitation facilities;
- residential facilities for the elderly and other residential facilities that provide in-patient care to people who cannot be cared for in day hospitals or out-of-hospital settings;
- out-patient services for those following acute hospital stays or long-term stays for disabling conditions; and
- social assistance services (ie, health care employees).
From 10 October 2021 to 31 December 2021, all health care employees are obliged to be vaccinated against covid-19, except in the case of exemption with a medical certificate.
The responsible persons in charge of the aforementioned facilities and the employers of the health care employees are obliged to ensure compliance with this obligation, acquiring the necessary information according to criteria that will be defined in the DPCM.
Health care employees who have not been vaccinated cannot carry out activities or tasks that involve in-person contact or the risk of spreading contagion. Until the fulfilment of the vaccination obligation or the completion of the national vaccination plan (no later than 31 December 2021), such employees must be assigned to different duties without a salary reduction. The reassigned roles must also be carried out in such a way that avoids the risk of spreading the coronavirus infection or, if not possible, such employees must be suspended from work without the right to salary or any other form of remuneration or compensation.
Violation of the obligations of verification and access to workplaces is punishable by fines ranging from €400 to €1,000, unless the act constitutes a crime.
Read More:FAQs: green passes in the workplace