During these days, one of the major business issues is the management of the human resources in order to balance the safeguard of the employees’ health and public health with the organizational/production needs.
The Prime Minister’s Decree dated 9 March 2020 extend to the entire national territory the restriction of the movement of individuals “without prejudice to the work-related reasons motivated by proven needs or other situations of need or for health reasons”.
In this respect, workers seem to be free to move by completing and using a self-certification available at the following link https://www.interno.gov.it/sites/default/files/allegati/modulo-autodichiarazione-17.3.2020.pdf.
However, the Prime Minister’s Decree dated 11 March 2020 has suspend some activities (retails, restaurants, hairdressers, etc.) and provides that “with regard to the production activities and professional activities it is recommended that: 1) maximum implementation by companies of the smart working mode for activities that can be performed at home or in remote”.
Moreover, the Prime Minister Decree dated 22 March 2020 has suspended all industrial production activities and commercial activities, except essential ones (indicated in the attachment to the decree), and provides that the activities suspended “can in any case continue if organized with remote or smart working“.
Therefore, with the exception of activities not suspended that requiring the physical presence of the employees, the main instrument to be used is the so-called smart working, which – in our legal system – has been formally introduced by Articles 18-23 of Law 22 May 2017, no. 81 (Law no. 81/2017). In order to implement such a working modality, the Law no. 81/2017 provides that the employer must enter into an agreement with the worker (or with the Trade Unions) and make an arrangement on the minimum smart working requirements, such as e.g. duration, withdrawal, timing, modalities, controls, etc.).
As stated above, the Prime Minister’s Decree of 8 March 2020 – which provisions had been extended to the entire national territory by Prime Minister’s Decree dated 9 March 2020 – establishes that “the smart working mode governed by Articles 18 to 23 of Law No. 81 of 22 May 2017, may be applied, for the duration of the state of emergency […] by employers to all employment relationships, in compliance with the principles contained into the aforementioned provisions, even in lack of the individual agreements provided for therein; the [health & safety] obligations under Article 22 of Law no. 81 of 22 May 2017 are electronically fulfilled, also by using the documentation made available on the website of the National Institute for Occupational Accident Insurance [(INAIL)]”.
In few words, this provision allows the simplified smart working activation without prior agreement with the worker (or Trade Unions) and consequently without his consent, with the following obligation for the employees to comply to the employers’ directives.
Therefore, the employer who intends to implement smart working shall provide:
- the communication to the workers, fulfilling the health and safety information obligations by sending electronically to them (also via e-mail) the related information on health and safety during the smart working period, according to the ones published on the INAIL website (https://www.inail.it/cs/internet/comunicazione/avvisi-e-scadenze/avviso-coronavirus-informativa.html);
- the telematics communication according to the procedure indicated at the following link https://servizi.lavoro.gov.it/ModalitaSemplificataComunicazioneSmartWorking/, uploading – instead of the agreement with the worker – a self-certification that the smart working refers to a person belonging to a risk areas.
Despite the provisions of the Prime Ministry Decree 8 March 2020 exempt the employers from the obligation to enter into an agreement with the employees, it is still required to fulfill the other provisions contained into Articles 18-23 of Law no. 81 of 22 May 2017: therefore, the employers must provide to the employees a communication containing the indication of the working hours, the right to disconnection, the operating procedures, the IT tools to be used and the employer’s control powers.
Without prejudice to the foregoing, in order to be able to quickly implement this working modality, in our opinion it should be appropriate, in any case, for a better protection of both the employers and the employees, to proceed – as soon as possible – with the drafting of the above mentioned agreement.
Holidays and paid leave
The economic situation may, on the other hand, give rise to the need for the employer not to use all the available human resources. In this respect, the Prime Minister’s Decree dated 8 March 2020 merely states that “where possible, employers are recommended to encourage the use of periods of paid leave or holidays” and the Prime Ministerial Decree dated 11 March 2020 that “holidays and paid leave as well as other collective instruments shall be encouraged“.
In relation to the accrued holidays, the employer can freely determine the period during which they should be used by the employee, considering the interests of the latter. In any case, please note that a forced allocation of them with short notice could be challenged by the employees. On the other hand, accrued and unused paid leave cannot be allocated unilaterally (under any circumstance) to the employees, but a mutual agreement could be reached by the parties.
Income and labour market support instruments
In case of deeper crisis, income and labour market support instruments such as ordinary redundancy funds and solidarity funds can be used.
On this point, it should be highlighted that the Law Decree 17 March 2020, no. 18, introduced extraordinary “Measures to reinforce the National Health System and economic support for families, workers and business related to the epidemiological COVID-19 emergency” adopting, inter alia, some economic measures in the labour field, as by way of example:
- extension of Cassa Integrazione Guadagni Ordinaria (Ordinary Wages Guarantee Fund) and Assegno Ordinario (ordinary allowance): the eligible employers, who suspended or reduced their business activities during the year 2020 due to the epidemiological COVID-19 emergency, can access to the Cassa Integrazione Guadagni Ordinaria (Ordinary Wages Guarantee Fund) or to the Assegno Ordinario (ordinary allowance) measures, by indicating in the request cause “COVID-19 emergency”, for a period starting from February 23, 2020 for a maximum duration of 9 (nine) weeks and, in any case, within the term of August 2020 (art. 19);
- extension to every employer of Cassa Integrazione Guadagni in deroga (Layoff Wages Guarantee Fund): all of the employers, who do not meet the requirements for accessing to the Cassa Integrazione Guadagni Ordinaria (Ordinary Wages Guarantee Fund) or to the Assegno Ordinario (ordinary allowance) measures, can access to the Cassa Integrazione Guadagni in deroga (Layoff Wages Guarantee Fund), subject to the recognition by the Regions and Autonomous Provinces of the state of emergency and according to an agreement entered into with the most comparative Trade Unions at national level (which can also be concluded in an electronic way), for the duration of the suspension of the employment relationship and, in any case, for a maximum period not exceeding 9 (nine) weeks (art. 22).
In addition, the above mentioned Law Decree provides also for some additional benefits and allowances for the professionals, VAT holders, tourism and agricultural sectors and introduces some extraordinary measures on parental leave, babysitting, etc.
Last, it should be noted that, for a period of 60 (sixty) days, all of the collective dismissals and the ones due to objective economic reasons (Giustificato Motivo Oggettivo) are not allowed and all the pending collective proceedings started after February 23, 2020 are suspended for the same period of time (art. 46). Therefore, only disciplinary dismissals for just cause (Giusta Causa) or for justified subjective reasons (Giustificato Motivo Soggettivo) seem to be allowed.