Employment Law Updates – Reopening Decree, Green Pass, smart working, court decisions and more…

Legislation

Covid-19 employment legislation update: Law by Decree No. 125/2020

New Law by Decree no. 125/2020, entered into force on October 8, 2020, provided for:

1. Extension of the state of emergency to January 31, 2021.
2. Extension of the simplified smart-working regime up to January 31, 2021.Under normal circumstances, companies must execute a written agreement with employees working in smart-working, in order to regulate working hours, the right of the employee to disconnect, organizational and supervisory power, etc.However, during the Covid-19 state of emergency, employees are allowed to work remotely without the prior execution of a written agreement with their employer.Since the state of emergency has been extended to January 31, 2021, this simplified smart-working regime is also extended until such date.
3. Extension to October 31, 2020 of the deadline for submitting applications to request governmental salary integrations.Pursuant to previous Legislative Decree no. 104/2020, applications should have been forwarded to INPS (Italian Social Security Agency), under penalty of forfeiture, by the end of the month following the month in which the period of suspension or reduction of working activity began.However, the first deadline was September 30, 2020.Pursuant to the new Law by Decree no. 125/2020, such first deadline has been moved to October 31, 2020.

New anti-Covid restrictions

The new Prime Minister’s Decree of October 13, 2020 tightened restrictions in Italy in order to stem a resurgence in virus cases, as follows:

1. Compulsory masks outdoors.
   It is mandatory to wear a mask when outdoors at all times, with the exception of places that, because of their characteristics or the factual circumstances, guarantee being isolated from non-cohabiting people.
2. Ban on parties and gatherings.
   It is prohibited to host or participate in parties, with the only exception of banquets organized after religious or civil ceremonies, where a limit of 30 guests is set.It is recommended to limit private gatherings to no more than six people inside homes.
3. Restrictions on contact sports.
   Contact sports (such as soccer or basketball) are banned in informal contexts, while trainings and matches organized by clubs are still permitted.
4. Restrictions for restaurants and cafes
   Restaurants and cafes shall close at midnight, but it is prohibited to eat and drink while standing after 9.00 pm.

Real World Questions

Question 1

Q. Is it still possible to request Governmental Salary Integrations due to the Covid-19 emergency?
A. Yes, companies can apply for 18 weeks of Governmental salary integrations to be used in the period from Jul 13 to December 31, 2020 (pursuant to legislative Decree No. 104/2020, which entered into force on August 15, 2020).

While the first 9 weeks of Governmental salary integrations are free for all companies, companies may have to pay a fee in order to use the remaining 9 weeks. The additional 9 weeks are free only for companies that had a reduction of more than 20% of their turnover in the first semester of 2020 as compared to the first semester of 2019.

Alternatively, companies not applying for the 18 weeks of Governmental salary integrations, may request an exemption from social security contributions, provided that they have already benefited from governmental salary integrations in May and June 2020.

Question 2

Q. Is the termination ban still in force?
A. Yes. Companies are not allowed to start collective dismissal procedures or to proceed with individual dismissals for justified objective reasons, unless they have fully benefited from governmental salary integrations or the exemption from social security contributions.

Court Decisions

Court of Cassation no. 20466/2020: it is prohibited to leave employees inactive.

Pursuant to Italian law, employees have the right to perform the working activity for which they were hired.

In fact, work is considered as a means to express the personality of each citizen, as well as the professional dignity of an employee.

Therefore, as stated by Court of Cassation with the judgement no. 20466/2020, the employer cannot leave its employees in a state of inactivity, because it would infringe on their right to work. In cases of inactivity, the employer is required to compensate the non-material damage (due to the stress and loss of occupational skills) caused to the employees, on the basis of the severity and duration of the forced inactivity.

Court of Cassation no. 16869/2020: burden of proof to obtain damages for violations of employees’ right to health and safety in the workplace.

Pursuant to article 2087 of the Italian Civil Code, an employer is required to adopt the necessary measures to protect the physical integrity and moral personality of its employees.

Pursuant to recent Court of Cassation no. 16869/2020, an employee claiming damages suffered as a result of the violation of article 2087 of the Italian Civil Code by the employer, shall prove the damage and its causal link to the performance of working activity.

On the other hand, the employer must prove that the damage was due to a cause not attributable to him, since he took all possible measures to avoid the damage in light of existing technical knowledge, and that the damage was the result of an unexpected and unpredictable event.