Employment Law Updates: Covid legislation, mask requirements, work on Sunday, weekly rest, and more…

In this issue:

Legislation:

1. Law by Decree no. 73/2021 (the “Sostegni-bis Decree”, i.e. the “Supporting Decree 2”): a quick summarization
2. Law by Decree no. 99/2021 (the “Employment and Enterprises” Decree)

Real World Questions:

1. Can employers force their full-time employees to work on a Sunday?
2. Is the time needed for an employee to reach his/her workplace considered as “working hours”?

Court Decisions:

1. It is lawful to suspend from work an employee who refuses to use a protective mask at the workplace (Labour Court of Venice, judgement of June 4, 2021)
2. Using the ordinary salary integration program (CIGO) only to maximize profits is unlawful. (Labour Court of Rome, judgement of June 30^h, 2021)
3. Employment credits statute of limitations starts only after termination. (Labour Court of Brescia, judgement of May 26, 2021)

Sources:

1. Law by Decree no. 73/2021
2. Law by Decree no. 99/2021;
3. Legislative Decree no. 66/2003;
4. Labour Ministry, consultation no. 60/2009;
5. Labour Ministry, message of April 2^nd 2010;
6. Labour Court of Venice, judgement of June 4, 2021;
7. Labour Court of Rome, judgement of June 30^, 2021;
8. Labour Court of Brescia, judgement of May 26, 2021.

Legislation

1. Law by Decree no. 73/2021 (the “Sostegni-bis Decree”, i.e. the “Supporting Decree 2”)

A – Governmental salary integrations and termination ban extension

Pursuant to art. 40 of the “Sostegni-bis” Decree, employers who reduce or suspend their activities because of the Covid-19 emergency on or after July 1, 2021, can now request access to ordinary (“Cassa Integrazione Guadagni Ordinaria” or “CIGO”) and extraordinary (“Cassa Integrazione Guadagni Straordinaria” or “CIGS”) governmental salary integrations provided under the Legislative Decree no. 148/2015 without paying additional contributions until December 31, 2021, however, in doing so, these employers are prohibited from implementing both Collective redundancy procedures and individual terminations for objective reasons (i.e. dismissal related to the business organization and management) until December 31, 2021.

For all others employers, the same rules provided under the first Sostegni Decree regarding the termination ban are still applied, therefore the termination ban will be effective until October 31, 2021 if the employer is eligible for the COVID-19 non-ordinary salary integration program.

Just as before, this termination ban does not apply in the following cases:

• permanent termination of the business activity due to the liquidation of the company;
• bankruptcy without temporary operation of the business;
• bankruptcy with temporary operation of the business, but only in relation to employees who are not part of such temporarily active branches;
• execution of a collective agreement with the national trade unions to offer incentives for the voluntary termination of employment contracts, but only in relation to the employees who agree to sign a voluntary termination agreement.

B – The re-employment contract

From July 1 to October 31, 2021, employers can use the re-employment contract to hire those who are currently unemployed and looking for a job.

Pursuant to Art. 41 of the Sostegni-bis Decree, employers who use this contract are exempt from paying all social security contributions otherwise due by them for a maximum duration of 6 months, excluding INAIL contributions for work-related injuries for a maximum of 6,000.00 Euro per year, to be calculated on a monthly basis. This exemption, however, will not apply to employers who, in the six months before the re-employment contract, have executed collective redundancy procedures or individual terminations for objective reasons within the same business unit.

To use this contract, the employer and the new employee must agree upon a six-month project aimed at giving the employee all the skills he/she will need for the job. During this six-monthly project, all rules provided for unlawful dismissal are applied.

At the end of the six-month period described above, both parties have the right to terminate the contract by giving notice within the relevant notice period – starting from the project termination date – pursuant to art. 2118 of the Italian Civil Code but, if no party withdraws from the agreement, the employment relationship will continue as indefinite-term.

Dismissing the new hire during or at the end of his/her six-month period will result in the loss of the social security contributions exemption described above, and the employer will therefore have to pay all contribution saved for that purpose. The same will apply in cases of the dismissal of an employee with the same job level and contractual category as the one hired with the re-employment contract in the six months following the re-employment, whether such dismissal is individual and based on objective reasons or executed through a collective redundancy procedure.

2. Law by Decree no. 99/2021 (the “Employment and Enterprises” Decree)

Among the many measures issued in the ongoing Covid-19 crisis, the “Employment and Enterprises Decree” provides for the fashion and extended textile sector companies (identified by the ATECO codes 13, 14, 15) that reduce or suspend their activities from July 1, 2021, the following:

• 17 weeks of free ordinary salary integration program (CIGO), to be used from July 1 to October 31, 2021;
• termination ban extension until October 31, 2021, if the employer is eligible for the COVID-19 ordinary salary integration program above.

Furthermore, regarding the sectors in which the termination ban has been lifted as of July 1, 2021 – the decree also establishes that companies that can no longer benefit from the extraordinary salary integration program (“CIGS”) may do so once again for 13 weeks until December 31, 2021, without paying additional contributions. However, the companies that will use this extraordinary salary integration program extension will also be subject to the extension of the termination ban until December 31, 2021.

Real World Questions

Question 1

Q. Can employers force their full-time employees to work on a Sunday?

A. Pursuant to the Italian Constitution, Civil Code and employment legislation, employees have the right to at least 24 consecutive hours of rest per week; this being said, the relevant legislation does not require this “rest-period” to always be on Sunday.

Furthermore, the Legislative Decree no. 66/2003, expressively states that this 24-hours of rest can be set on a different day than Sunday and can be organized in compliance with the needs of the company. The Labour Ministry has also specified that employees have the right to rest every week but this resting period is not necessarily on Sunday (Labour Ministry, consultation no. 60/2009).

Many National Collective Bargaining Agreements allow the employer to make its full-time employees work on Sundays, as long as they still get to use their weekly rest, but provide, in return, for a higher pay for the hours worked on a Sunday.

In conclusion, unless otherwise stated by the parties in the individual employment contract or in the applied CBA, full-time employees can be unilaterally forced to work on a Sunday, as long as they still get to use all of their weekly resting period provided under the applicable Legislation and CBA.

Question 2

Q. Is the time needed for an employee to reach his/her workplace considered as “working hours”?

A. In general, business travel is not considered working time under Italian Employment Legislation.

This being said, in 2010 the Labour Ministry confirmed a case-law of 2004 (also confirmed in 2013 by the Supreme Court of Cassation) according to which travel time must be considered as working time when it is functional to the employee’s performance. For example, in the case of an employee who, once having reached the company premises, is sent, from time to time, to different locations in order to carry out his working activities.

Similarly, newer case law (2018) has confirmed that travel time is considered working time when essential to the employee’s duties or if during such travel the employee receives instructions from the employer.

This means that as long as an employee’s travel is strictly linked and/or functional to his/her duties, the relevant travel time is to be considered as “working time”.

Court Decisions

1. It is lawful to suspend from work an employee who refuses to use a protective mask at the workplace.

Labour Court of Venice, judgement of June 4, 2021

Last month, the Court of Venice decided the case of an employee who refused to wear his protective mask on the job, siding with the company decision to issue, against said employee, a disciplinary suspension for three days from work and pay.

Specifically, the employee was notoriously against to the use of the mask, which had led him to not wear it in a meeting in which many people were present, going as far as to openly challenge the obligation to use it.

The Court of Venice stated that the employer, bound by the obligation to protect the health of its workers, must take all necessary and appropriate measures to prevent harmful events, including Covid-19, since the Law by Decree no. 18/2020 (“Cura Italia”) considers Coronavirus contracted in the workplace as a work-related accident.

In particular, companies are required to apply the Shared Protocol of April 24, 2020 (updated in 2021), which provides, among the measures aimed at countering the spread of Covid-19, the obligation to wear masks for all workers, where it is not possible to maintain the interpersonal distance of at least one meter, as well as whenever needed in relation to specific organizational realities.

In light of all the above, the Venetian Court stated that the enforcement of the use of the mask on employees is neither an irrational nor an excessively burdensome safety measure, and fully responds to the employer’s duty to protect its employees as best as possible. For this reason, the Court considered unjustified the employee’s failure to use the mask in the above-mentioned meeting and even more unjustified his strong words against the company, especially when also taking into account his role of RLS (Workers’ Safety Representative).

2. Using the ordinary salary integration program (CIGO) only to maximize profits is unlawful.

Labour Court of Rome, judgement of June 30, 2021

The Court of Rome, has recently stated that the Covid salary integration programs may only be granted in situations of objective difficulty for a company and, therefore, a company that has declared performance “far better than the market” is not entitled to such benefit.

In particular, an employee filed an urgent appeal against the decision to place him in the ordinary salary integration program (“CIGO”) at zero hours for Covid-19 related difficulties, claiming that such decision was adopted in the absence of the legal requirements for the use of the above-mentioned salary integration program.

The Court upheld the worker’s appeal, declaring that the CIGO can only be granted in situations in which there is objective difficulty for the company in regularly continuing its production activities. In this case, the company in question requested CIGO to free itself from its remunerative obligation towards its employee, thus eluding the termination ban in effect at the time and carrying out the already decided reorganization that would have required the suppression of the employee’s work position.

In conclusion, the above-mentioned purposes were deemed unlawful and in contrast with the reasons behind the CIGO which, far from being an instrument for companies to maximize their profits, aims to maintain jobs during periods of economic hardship.

3. Employment credits statute of limitations starts only after termination.

Labour Court of Brescia, judgement of May 26, 2021

ccording to the Supreme Court of Cassation, for the purpose of defining the starting date of the statute of limitations of employment-related claims, the distinction between relationships subject to protection in rem (“tutela reale”) and relationships not subject to such protection, has been, traditionally, very relevant.

In particular, the commencement of the statute of limitations from the moment of the onset of the worker’s right is traditionally recognized by the Supreme Court with exclusive reference to those employment relationships that are qualified by the employee’s right to be reinstated in case of unlawful dismissal (the so-called “protection in rem” or “tutela reale”, which was originally provided under Art. 18 of Law no. 300/1970). This is because in these relationships the employee is considered to be less intimidated by the employer and to be less fearful of being dismissed, therefore he/she should be able to propose claims for his/her rights even during the employment relationship.

The Labour Court of Brescia observed, however, that Art. 18 of Law no. 300/1970, has been modified by the Law no. 92/2012, and now provides for the abovementioned reinstatement protection only for fewer and more severe cases of unlawful dismissal (for example, for dismissals based on discriminatory reasons), while for other cases it only provides the employee with a monetary compensation. This means that employees that benefit from this provision are actually subject to the uncertainty of the protection (reinstatement or compensation) that will be available to them in the event of unlawful dismissal, and, therefore, can no longer be considered as under “protection in rem”.

In conclusion, the Labour Court of Brescia took into account all of the above to declare that, following the amendments made by Law no. 92/2012 to art. 18 of Law no. 300/1970, the statute of limitations on salary claims does not start during the course of the employment relationship, even when the amended art. 18 is applicable.