Employment Law updates: Covid emergency legislation, smart working, the vaccine, termination ban, and more.
In this issue:
Legislation
- Covid emergency legislation and practices update.
Real World Questions
- Does an employer have to pay for the electricity and internet connection used by its smart working employees?
Can an employer ask its employees to confirm if they are vaccinated against Covid?
Court Decisions
- The first case on termination for economic reasons executed during the Covid termination ban. (Labour Court of Mantova, judgement No. 112 of November 11, 2020)
- Terminating an employee because he/she is no longer fit to execute his/her duties is a dismissal for objective reasons and, therefore, prohibited up until March 31, 2021. (Labour Court of Ravenna, judgement of January 7, 2021)
- It is unlawful to not disclose to the trade unions and to the employees the criteria used to choose the employees affected by a governmental salary integration. (Court of Cassation, judgement No. 2289/2021)
Sources:
- Law-Decree No. 15/2021
- INPS Newsletter No. 24/2021
- GPDP FAQ – February 2021
- Labour Court of Mantova, judgement no. 112 of November 11, 2020
- Labour Court of Ravenna, Judgement of January 7, 2021
- Court of Cassation, judgement no. 2289/2021
Legislation
1. Extension of the regional travel ban up until March 27, 2021.
The travel ban already in effect regarding movement between regions is extended up until March 27, 2021, save for travel for necessity, work, or health reasons, and travel to return to one’s residence, domicile, or home. (Law-Decree No. 15/2021)
Within regions included in the “yellow zone”, it is possible to move to a single private home once a day, between 05:00 and 22:00, in a group not larger than 2 people, not counting those less than 14 years old. The same special rule also applies to regions included in the “orange zone” but on a smaller scale, allowing this kind of travel only within the same city or town. No exemption to the travel ban is provided for regions included in the “red zone”.
2. Employers with multiple business units can choose between governmental salary integration or exemption from social security contributions.
Employers can request governmental salary integrations to face the ongoing Covid emergency or, alternatively, a partial exemption from social security contributions that will become available after the European Commission has duly authorized it. (Covid emergency legislation and its latest addition, Law No. 178/2020)
These two measures, provided to help businesses through the Covid crisis, may seem mutually exclusive, but in some cases they are not.
If a company has multiple business units, the employer can choose which measure to adopt in regard to each unit. This means that employers who request salary integrations for some of their industrial or production units or offices can also request (when it becomes available) the above-mentioned exemption from social security contributions for other units for which they never requested governmental salary integrations.
The Italian Social Security Agency (“INPS”) made this important clarification in a recent newsletter (No. 24/2021) regarding the previously relevant D.L. 137/2020, and it is still applicable to the current Law No. 178/2020, as it provides for the same measures.
Real World Questions
Question 1
Q. Does an employer have to pay for the electricity and internet connection used by its smart working employees?
A. Law No. 81/2017 describes smart working as a specific way for employees to carry out their duties without being bound by precise working hours and/or workplace sites. This way of working has become increasingly more common with the ongoing Covid emergency since the Italian legislation strongly favoured smart working to reduce the spread of the virus.
Law No. 81/2017 also explicitly states that smart working employees are entitled to an economic and legal treatment on par with that of their on-site colleagues.
This being said, there is currently no legal obligation for the employer to pay the additional costs faced by a smart working employee, such as the internet connection or the electric bill.
While this may seems a contradiction to the above-mentioned principle of equal treatment between smart working and on-site employees, it must be noted that a smart working employee does not need to reach the workplace and therefore can avoid commuting, as well as its costs.
Question 2
Q. Can an employer ask its employees to confirm if they are vaccinated against Covid?
A. No, even if the employees consent to such a request. In addition to this, an employer cannot even ask the appointed company doctor about the employees’ Covid vaccinations.
The Italian Personal Data Protection Supervisor (GPDP) has recently published a FAQ, in which it states that no employer can inquire about the “vaccination status” of its employees, even with their consent, since only the appointed company doctor can lawfully process that kind of data.
This being said, the employer can always ask the appointed company doctor to evaluate if an employee is fit to the task currently assigned to him/her.
Court Decisions
The first case on termination for economic reasons executed during the Covid termination ban.
Labour Court of Mantova, judgement No. 112 of November 11, 2020
Since the Law-Decree No. 17/2020, collective redundancy procedures and individual terminations for objective reasons have been prohibited or suspended, although with some exceptions. With Law No. 178/2020, the latest addition to the Covid emergency legislation, this termination ban has been extended up until March 31, 2021.
In November 2020, the Labour Court of Mantova decided the first case of individual termination supposedly executed in violation of the Covid termination ban.
The Labour Court stated that such termination ban is a temporary measure, taken to ensure the stability of both employment relationships and the market, and therefore it is an imperative provision linked to the public needs.
The Court ruled therefore in favour of the employee, declaring the dismissal null and void and ordering the reinstatement of the employee, because the dismissal was executed in violation of an imperative provision.
The Labour Court also stated that any employer who terminates an employment relationship must always prove the reason behind such termination, even if the kind of dismissal is not prohibited by the Covid termination ban.
Terminating an employee because he/she is no longer fit to execute his/her duties is a dismissal for objective reasons and, therefore, prohibited until March 31, 2021.
Labour Court of Ravenna, judgement of January 7, 2021
With Law No. 178/2020, collective redundancy procedures and individual terminations for objective reasons have been prohibited or suspended, with some exceptions, until March 31 2021.
The Labour Court of Ravenna recently stated that this termination ban also applies to those employees who have been terminated for being declared, by the appointed company doctor, no longer physically fit to execute their duties.
The Court explained that this type of termination is based on objective reasons just like all individual terminations that are currently prohibited by the Covid termination ban. The Court also noted that since the dismissal in question was executed in April 2020, there could be no doubt on the constitutionality of the termination ban at the time, since it had been active for little more than one month.
In conclusion, the Court ruled in favour of the employee, declared the dismissal null and void and ordered the reinstatement of the employee. The reasoning behind this decision is that the dismissal in question was a violation of an imperative provision, i.e. the Covid termination ban.
It is unlawful to not disclose the criteria used to choose the employees affected by governmental salary integration to the trade unions and employees.
Court of Cassation, judgement No. 2289/2021
Pursuant to Law. No. 223/1991 and the following Legislative Decree No. 148/2015, an employer that intends to request a salary integration to the Italian government, such as the “cassa integrazione guadagni”, must first inform the trade unions to open a possible joint-examination on the reduction of working hours or suspensions from work that requires such salary integration.
For this purpose, the Supreme Court recently stated that an employer must disclose to the trade unions the criteria by which the employees affected by the governmental salary integration will be chosen, so that the trade unions can examine such criteria and ensure their correct application.
Therefore, not disclosing or not providing enough detail about these criteria is unlawful and can be challenged by the affected employees, that could ask for the payment of their full salary even if an agreement was eventually reached with the Trade Unions on the salary integration.
