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

In this issue:

 Legislation:

• Law by Decree no. 24/2022 (the “Decreto Riaperture”, i.e. the “Reopening Decree”): a quick summary
  • Preamble: existing types of green pass certificate;
  • End of the Green Pass Certificate Requirements;
  • Employment focus.
• The “Family Act”.

Real World Questions:

• Can the employer freely withdraw from a smart working agreement?

• Can trial/probationary periods and notice periods be agreed upon in fixed-term employment contracts?

Court Decisions:

• The judge must apply conservative disciplinary measures when the applicable CBA provides them for the employee’s unlawful conduct, even if such provision is expressed in general or elastic clauses (Supreme Court, judgement of April 11, 2022, No. 11665);
• Concerning collective dismissals, terminated employees can be reinstated if the dismissal communication made it impossible to understand how the agreed selection criteria were applied to them (Supreme Court, judgement of March 25, 2022, No. 9800).

Sources:

1. Law by Decree no. 24/2022
2. Bill with delegations to the Government for the support and enhancement of the family;
3. Law no. 81/2017;
4. Protocol of 7 December 2021;
5. Supreme Court, judgement of April 11th, 2022, No. 11665;
6. Supreme Court, judgement of March 25th, 2022, No. 9800.

Legislation

1)“Reopening Decree”

1.1) PREMABLE: existing types of Green Pass Certificate

On March 31, 2022, the state of emergency ended and as a result many of the restrictive measures previously adopted to contain the pandemic have been progressively abandoned. For this purpose, the Law by Decree No. 24/2022 (“Reopening Decree” or, in Italian, “Decreto Riaperture”) has been issued, brining many changes, especially in reference to the Green Pass requirements.

To fully comprehend these incoming changes, however, the following distinctions must be kept in mind:

• The Basic Green Pass is a COVID-19 Green Certification received after a vaccination, a full recovery, a rapid antigen test, or a molecular test that gave negative results;
• The Enhanced Green Pass or “Super Green Pass” is a COVID-19 Green Certification received only after a vaccination or a full recovery. In other words, the Super Green Pass cannot be received after simply passing (with a negative result) a rapid antigenic or molecular test;
• The Green Pass Booster is a COVID-19 Green Certification received only after the administration of the booster dose, following the completion of the primary vaccination cycle.

1.2) End of the Green Pass Certificate Requirements

Until April 30, 2022, a Super Green Pass Certificate was required to enter the following indoor locations: gyms, swimming pools, spas, convention centres, cultural centres, social and recreational centres, parties of any kind, arcades/gaming halls, betting halls, bingos, casinos, ballrooms, nightclubs, public events and sporting events, as well as to perform any team or contact sport.

Furthermore, until April 30 2022, a Basic Green Pass Certificate was required to enter the following indoor locations: cafeterias, restaurants (with the exception of hotel restaurants, that required a Basic Green Pass even if located outdoor), public competitions, training classes and to carry out in-person interviews with inmates, as well as to participate in outdoor public shows, sporting competitions and events.

This being said, as of May 1, 2022, no Green Pass Certificate is required for any of the above activities, as well as practicing sports; entering shops, restaurants, businesses, public offices, museums, and hotels; or using local public transportation, including subways, buses and trams.

1.3) Employment focus

The Reopening Decree provides for new regulations concerning employment in Italy, with the COVID-related state of emergency ended on March 31, 2022, and that the Green Pass Certificate is no longer required in the vast majority of cases. These regulations can be summarized as follows:

• No Green Pass of any type (Basic, Super or Booster) is required to access either public or private workplaces, with the sole exception of hospitals and nursing homes and provided the vaccination requirements described herein below are met, where applicable;
• until June 15, 2022, all personnel of schools, universities, public safety and rescue teams, local and penitentiary police forces as well as foresters will need to be vaccinated against COVID to perform their jobs and duties;
• until June 15, 2022, all Italian citizens, as well as citizens from the European Union that reside in Italy and foreigners who benefit from the Italian Health Care system, are still required to vaccinate against COVID-19 if they are currently 50 years old or older or they will be 50 years old by June 15, 2022;
• until June 30, 2022, the so-called “simplified smart working”, that allows employers to request that their employees carry out their duties in smart working (for example, from their homes) without needing a specific individual agreement with each employee, as otherwise required by Law No. 81/2017, will still be available, as we already discussed in our last “Employment Law Updates” of March 24, 2022. In this regard, it must be noted that currently existing smart working agreements between employers and employees will remain valid and in effect regardless of this extension of the simplified smart working, unless both the employers and the affected employees agree to postpone the start of their respective smart working agreements to July 1, 2022;
• until December 31, 2022, all medical personnel, including those employed in Nursing Homes, will need to be vaccinated against COVID to perform their jobs and duties.

2)“Family Act”

The “Family Act” is an innovative bill aimed at counteracting the steady decline in births in Italy through family policies, training and youth empowerment, the strengthening of the welfare system, the so-called universal unique allowance, better support with regard to the expenses due to children’s education, revision of parental leave with a better balance between work and childcare for both parents, as well as measures to encourage women’s employment.

Some of the most interesting provisions of the Family Act can be summarised as follows:

• Universal unique allowance: families lawfully residing in Italy (either via Italian citizenship or regular residence permits) with a dependent child (from the 7^th month of pregnancy and onward) until his/her 21^st birthday will be able to request a new allowance, that will replace all other deductions previously provided to help families with dependent children (such as the deductions on income taxation for dependent children; the allowances for minors and/or for large families; the so-called Baby-Bonus, the birth bonus and the birth fund for loan guarantees). This new allowance is called “universal” because it will be available to all taxpayers and not just subordinate employees; furthermore, this new allowance will be calculated considering each requesting family’s income and total number of dependent children;
• Parental leave: working parents will be able to take a parental leave until their child’s 14^th birthday, while previously this option was available only until the child’s 12^th Working parents will also be able to take, subject to prior notice to their employer, a specific paid leave of at least five hours per year for each child, for interviews with teachers and to participate actively in their child’s growth. Parental leaves will also be usable in a more flexible manner, pursuant to the applicable CBA provisions and to better help single-parent families. Furthermore, parental leave will have a “non-transferable” minimum duration of 2 months. Concerning fathers, their mandatory paternity leave will be extended above the 10 days currently provided, regardless of the father’s seniority and family status. Lastly, the indemnity received by workers while on non-mandatory parental leave will also gradually increase, ideally from the current 30% to 50% of the worker’s salary.
• Autonomous workers: the Family Act also delegates the Government to issue provisions and measures aimed at extending to autonomous workers and freelancers the same parental leave regulations applied to subordinate workers.

Real World Questions

Question 1

Can the employer freely withdraw from a smart working agreement?

Answer

The Italian legislation on smart working (contained in Law 81/2017 and the Protocol of 7 December 2021) provides for two types of smart working agreement, with different rules concerning withdrawal.

Both the employer and the employee that enter an open-ended smart working agreement can withdraw from it by giving no less than thirty days’ notice. In the case of a worker with certified disabilities, the notice due by the employer that chooses to terminate the smart working agreement is raised to a minimum of ninety days, to better support the additional needs of this kind of worker. In the presence of a justified reason, each of the entering parties can withdraw without notice from an open-ended agreement.

Concerning fixed-term smart working agreements, it is not possible for either the employer, or the employee, to withdraw from such agreements before their natural expiry date unless a justified reason is provided by the withdrawing party, in which case no notice period needs to be given to the other party.

In conclusion, employers cannot freely withdraw from open-ended smart working agreements without giving the employee the required minimum notice, unless there is a justified reason. On the other hand, employers may withdraw from fixed-term smart working agreements before their expiry date only if they can provide the affected employee with a justified reason, in which case no notice period is needed.

Question 2

Can trial periods and notice periods be agreed upon in fixed-term employment contracts?

Answer

First of all, pursuant to the Italian Employment legislation, notice and trial periods are defined by the applicable National Collective Bargaining Agreement (“CBA”) and depend on each employee’s job level as it is described in the applied CBA. This being said, individual employment contracts can provide for notice and probation periods that differ from those already provided under the applied CBA, but only if these provisions are more favourable to the employee. In other words, an individual employment contract can only provide for a longer notice period (in case of termination) or a shorter probation period than those provided under the applied CBA.

Concerning fixed-term employment contracts, the following must be noted:

• They do not provide for a notice period, because by nature they have a specific expiration date agreed upon by the parties, who therefore do not need “the safety net” of the notice period. Furthermore, the only way to terminate a fixed-term contract before its expiration date is a so-called “just cause”, which implies an immediate termination without any notice period;
• in the context of multiple fixed-term contracts subsequently entered with the same employee and for the same duties, there can be only one trial period in total;
• lastly, the duration of the trial period in a fixed-term employment contract should always be proportionate to the duration of the contract itself (for example, a 3-month fixed-term contract should not provide for a 60 working days probation period).

Court Decisions

1. The judge can apply conservative disciplinary measures when the applicable CBA provides them for the employee’s unlawful conduct, even if such provisions are expressed in general or elastic clauses.

Supreme Court, judgement of April 11, 2022, No. 11665

On the subject of disciplinary dismissal, subordinate workers hired before March 7, 2015 benefit from a more protective set of rules, contained in Article 18 of the Workers’ statute.

In particular, these workers can be reinstated when their unlawful conduct can be ascribed to those that are punishable with a conservative disciplinary measure (i.e. anything that does not result in the employee’s disciplinary dismissal) pursuant to the National Collective Bargaining Agreement (CBA) that is applied to them.

Some CBAs however, are particularly vague when describing what conducts should result in a disciplinary dismissal and what should instead be punished with a lighter measure (such as a fine or, in the most severe cases, a suspension from work without pay) and, until this particular ruling, the Supreme Court traditionally treated the reinstatement of the workers as a residual option, to be issued only whenever the relevant conduct could not be precisely attributed to CBA provisions that provides for a conservative measure instead of a disciplinary dismissal.

This being said, in this recent ruling the Supreme Court drastically changed its habits, this time stating that the Labour Judge can apply conservative disciplinary measures against employees even when the “softer” CBA provisions use general or elastic clauses to describe the respective conducts and, therefore, treating the worker’s reinstatement not as a residual option, but as the main remedy in cases such as this.

2. Concerning collective dismissals, terminated employees can be reinstated if the dismissal communication made it impossible to understand how the agreed selection criteria were applied to them.

Supreme Court, judgement of March 25, 2022, No. 9800

Pursuant to Italian Employment Legislation, employers must issue a specific communication to the appointed Regional Labour Office when executing a collective dismissal, containing for each terminated employee his/her name, place of residence, position, level of employment, age, family burdens, as well as precise details of the methods used to apply the criteria previously discussed with the Trade Unions in the context of a collective dismissal procedure by which said employee was dismissed instead of his/her other colleagues.

On this regard the Supreme Court recently stated that the purpose of the abovementioned communication should be identified in the need to control not only the effectiveness of the choices made by the employer, but also the way in which the abovementioned criteria previously agreed with the Unions were actually applied.

Furthermore, the Court also stated that if the abovementioned communication is so generic that it prevents the affected workers from understanding why they, and not their other colleagues, have been dismissed and, therefore, how they could challenge the employer’s decision to dismiss them, the affected workers should be reinstated (and not only indemnified), because such scenario would be comparable to a clear violation of the agreed selection criteria, for which the relevant legislation provide for the reintegration of the employees.