Employment Law updates: Covid Vaccine, Salary Integration, Termination Ban, and more
Legislation
1. Governmental salary integrations have been extended for 12 additional weeks
Companies can request an additional 12 weeks of governmental salary integrations to help them through the ongoing Covid emergency. (Art. 1 of Law no. 178/2020, beginning with paragraph 299)
These 12 weeks are free and can be used in the following periods:
- between January 1st, 2021 and March 31st, 2021, for the ordinary wages guarantee fund (“Cassa integrazione guadagni ordinaria” or “CIGO”);
- between January 1st, 2021 and June 30th, 2021, for the ordinary allowance (“Assegno ordinario”) and the derogation wages guarantee fund (“Cassa integrazione guadagni in deroga” or “CID”);
There is also a provision which extends the salary integrations to employees hired on or before January 1, 2021, extending it from the previous deadline of March 25th, 2020.
Save for the agricultural sector, employers who do not request the above-mentioned governmental salary integrations are entitled to a partial exemption from social security contributions. The exemption must be used before March 31st, 2021, it is for a maximum period of 8 weeks and is assigned on the basis of the hours of salary integrations already approved and used during May and June 2020. It will become available on request only after the European Commission has duly authorized it.
2. The termination ban has been extended to March 31st, 2021
Collective redundancy procedures and individual terminations for objective reasons (i.e., dismissals related to the organization and management of the business) are prohibited or suspended until March 31st, 2021 if the relevant procedures were started after February 23rd, 2020. (Art. 1 of Law no. 178/2020, beginning with paragraph 309)
The termination ban does not apply in the following cases:
- permanent termination of the business activity due to liquidation of the company, if during such liquidation there is no business unit transfer pursuant to art. 2112 of the Italian Civil Code;
- bankruptcy without temporary exercise of the business;
- bankruptcy with temporary exercise of some business units, but only in relation to employees who are not part of such temporarily active units;
- execution of a shop agreement with the trade unions, which provides for incentives to the voluntary termination of employment relationships, but only in relation to the employees who agree to sign a voluntary termination agreement for this purpose.
3. Extension of the possibility to renew/continue fixed-term employment contracts
Companies can renew or extend fixed-term employment contracts once, for a maximum period of 12 months and a total duration not longer than 24 months, until March 31st, 2021, regardless of whether the reasons described under Art. 19 of the Legislative-Decree no. 81/2015 are present. (Art. 1 of Law no. 178/2020, paragraph 279)
Art. 19 of the Legislative-Decree no. 81/2015 provides that a fixed-term employment contract can have a maximum duration of 12 months, but can be renewed or extended, up to a maximum duration of 24 months, in the presence of one of the following reasons:
- for temporary and objective needs which are external to the ordinary business of the company;
- to replace other employees;
- for needs related to temporary, significant, and unforeseeable increases in the ordinary business of the company.
4. Exemption from social security contribution for employers who hire employees under 36 years old
Companies that hire new employees with indefinite-term contracts or that convert fixed-term contracts in indefinite-term contracts in the years 2021 and 2022 in relation to employees that are younger than 36 years old, are entitled to a 100% exemption from social security contribution for a maximum period of 36 months (48 if the new hires concern workplaces located in the following regions: Abruzzo, Molise, Campania, Basilicata, Sicilia, Puglia, Calabria and Sardegna) and for a maximum of 6,000.00 Euros per year. (Pursuant to Art. 1 of Law no. 178/2020, paragraph 10)
The exemption requires that during the 6 months before hiring the new employee and in the 9 months that follow, the employer has not dismissed, nor will dismiss, any employee with the same job title and that works in the same workplace as the new indefinite-term employee pursuant to collective redundancy procedures or individual terminations for objective reasons.
This exemption will become available on request only after the European Commission has duly authorized it.
Real World Questions
Question 1
Q. Is it possible to dismiss an employee that refuses to be vaccinated against COVID?
A. There is some debate over the answer to this question, which ultimately comes down to the specific circumstances.
Art. 32 of the Italian Constitution guarantees that no one can be forced to undergo medical treatment if not required by a specific Law.
Pursuant to Art. 2087 of the Italian Civil Code, an employer must ensure the safety of its employees by adopting all measures deemed necessary for that purpose, taking into consideration the kind of work assigned to the employee, as well as the experience and the technology available to the employer.
Art. 2087 above is not, however, specific enough to be considered a “Law” pursuant to art. 32 of the Italian Constitution, and, to this day, there is no specific Law in Italy that enforces a mandatory vaccination against COVID.
This being said, according to the majority of experts in the medical field, an employee that refuses to be vaccinated against COVID might put the health and safety of his/her colleagues at risk.. For some authors (P. ICHINO), this is enough to justify the dismissal of such employee, if it is not possible to assign him/her new and different activities, nor is it feasible to keep him/her on unpaid leave.
Question 2
Q. If a company has already obtained access to governmental salary integrations pursuant to Law by Decree no. 137/2020 for a period of time, even partially, after January 1st, 2021, can said company also request the 12 additional weeks of governmental salary integrations provided for under Law no. 178/2020?
A. Yes, but every hour, day and week of salary integration requested under Law by Decree no. 137/2020 and occurring after January 1st, 2021 will be considered part of the 12 additional weeks requested later pursuant to Law no. 178/2020. In other words, governmental salary integrations requested pursuant to Law by Decree no. 137/2020 will terminate on January 1st, 2021, at which time the new governmental salary integrations requested later pursuant to Law no. 178/2020 will begin.
Court Decisions
Court of Cassation, judgement no. 28630/2020: a death threat by an employee who curses often is not a valid just cause of dismissal
Pursuant to Art. 2119 of the Italian Civil Code, a valid just cause of dismissal is an event that makes it impossible for the withdrawing party to continue the employment relationship; in other words, any event that irreparably compromises the trust between employer and employee.
The Supreme Court of Cassation has stated that a death threat made by an employee who was already notorious for his strong language to a Trade Union representative does not, however, qualify as a just cause of dismissal and, therefore, the dismissal based on such event is unlawful.
The Supreme Court deemed the employee’s threat not serious in light of his well-known cursing habits, in addition to the fact that the employee and Trade Union representative were already on bad terms before the event in question.
This being said, the Supreme Court has also stated that the employee’s conduct, while not serious and therefore not a valid just cause of dismissal, was still contrary the principle of correctness among colleagues and, therefore, could be punished with a less severe disciplinary measure.
Labour Court of Palermo, judgement no. 3570 of November 24th, 2020: riders are subordinate employees
Last year, the Appeal Court of Torino qualified riders as “parasubordinate” employees, since they can freely decide if and when to “go to work” but are not truly self-employed; this meant that the Italian legislation concerning workers’ rights could be applied to the riders too, even if they could not be considered truly subordinate employees.
More recently, the Labour Court of Palermo has expressively qualified riders as subordinate employees, on the grounds that the digital platform used by riders organizes and coordinates all of the riders’ work, ranking them and subsequently choosing which timeslots to make available to which rider. The Court explained that riders cannot truly choose if and when to “go to work” and are also subject to the organizational and disciplinary power of the employer, since a low ranking on the platform would mean less chances of a delivery for such rider, therefore they must be qualified as subordinate employees.
In addition to this, the Court observed that disconnecting a rider from the relevant platform app after he publicly attacked his employer is a form of unlawful dismissal, therefore the rider has been reinstated in the company as a full time, indefinite-term employee.
Labour Court of Bologna, judgement of December 31st, 2020: a digital platform that uses riders’ ranking to assign them timeslots is discriminatory
Pursuant to Art. 2 of the Legislative Decree no. 216/2003, any criteria, provision, custom, agreement or conduct that, while seemingly neutral, can put at a particular disadvantage a person because of his/her religion, ideology, handicap (if present), age, or sexual preference is an indirect form of discrimination.
The Labour Court of Bologna, in regard to a claim filed by the relevant Unions, has recently stated that the algorithm used by Deliveroo to manage and assign the available timeslots to the company riders is discriminatory when it favours riders that have made more deliveries and therefore have a “higher ranking” in the eyes of this algorithm. This is because such algorithm does not take into account that other riders may have made less deliveries for legitimate reasons, such as participating in a strike, being sick, or having to assist a sick or handicapped relative.
The Court has therefore deemed the discrimination in question as “indirect” pursuant to Italian legislation and has granted the Unions a compensation of 50,000 Euros for the damages caused by the discriminating algorithm.
