COVID-19: Further measures of DPCM 8 March 2020. Focus on employment relationships

Preapered by Gianluigi Baroni, Francesca Tironi, Giulia Spalazzi and Valentina Panettella

During the night, the President of the Council of Ministers signed the Prime Minister’s Decree defining the new national emergency to contain the Covid-19 emergency.

The new Decree identifies some areas in the Centre-North (in particular the whole of Lombardy and the provinces of Modena, Parma, Piacenza, Reggio-Emilia, Rimini, Pesaro and Urbino, Alessandria, Asti, Novara, Verbano-Cusio-Ossola, Vercelli, Padua, Treviso and Venice), where strict limitations are enforced (“Red Zone”).

At the same time, many restrictions, of a preventive nature, are introduced on the entire territory of the Italian State.  The provisions of the Decree dated March 8th are immediately enforceable and will remain valid and including April 3rd 2020, “unless otherwise specified”.

How should employer act?

With reference to the Red Zone, Article 1, paragraph 1, letter e) of the Decree dated March 8th, recommends that employers (both public and private) promote, throughout the period of effectiveness of the decree, the benefit by employees of periods of ordinary leave and annual paid leave, without prejudice to the agile working arrangements.

If, on the other hand, it is not possible to adopt smartworking, it is advisable for the employer to issue a certification to the employee certifying that the latter has to carry out his/her working activities at company’s premises, highlighting that in the absence of such certification there might be a prejudice to the necessary productive (or organizational) business continuity.

It is also provided that when meetings are held, in all possible cases, remote connection methods must be adopted.  Where this is not feasible, it must in any case be guaranteed that the interpersonal safety distance of one meter is respected, also avoiding group meetings.

Pursuant to Article 2, paragraph 1, letter r), throughout the national territory, the agile working method, regulated by Articles 18 to 23 of Law no. 81 of 22 May 2017, may be applied by employers to all employment relationships, in compliance with the principles established thereunder, even in the absence of individual agreements and for the entire duration of the state of emergency referred to in the resolution of the Council of Ministers of 31 January 2020 (i.e. until 31 July 2020).

The reporting obligations pursuant to art. 22 of Law no. 81 of 22 May 2017 can also be fulfilled electronically by using the documentation made available on the website of the National Institute for Occupational Accident Insurance.

In addition, wherever possible, employers throughout the national territory are recommended to encourage the benefit by employees of periods of ordinary leave or holidays, pursuant to art. 2, paragraph 2, letter s).

These measures follow the provisions of the recent Legislative Decree no. 9/20 which, in the field of employment law, has provided for the introduction of simplified procedures for submitting applications for CIGO or ordinary allowance for suspension or reduction of work; the admission of the submission of applications for CIGO or Wages Guarantee Fund in derogation and the recognition of a monthly allowance to certain categories of workers.

On this matter, however, it should be noted that pursuant to the art. 5, paragraph 3, of the Decree March 8th, it is expressly provided that the previous Decrees of the President of the Council of Ministers dated March 1st and March 4th  shall cease to have effect from the day on which the provisions of the Decree March 8th  become enforceable.

Nonetheless, it should be noted that Decree Law 9/2020, in identifying – under article 13 – the geographical areas where are located the local units with reference to which employers may  apply for CIGO and FIS for suspension or reduction of work activity, makes expressly  reference to the Prime Ministerial Decree of dated March 1st.

It therefore still remains to be clarified how the Government is going to proceed with regard to the issue of CIGO and FIS for companies located in the original “red zone” which, to date, has not disappeared but has, on the contrary, been considerably extended.

The Decree, moreover, does not clarify the operational issues of access to these institutions, and in this regard we will have to wait for the instructions of INPS.

In addition to the above, the Decree dated March 8th  also provides for further measures that will also have an impact on employment relations. Among these, in particular, the reduction of mobility in the identified areas of the Centre-North of Italy.

In the aforementioned areas of the Centre-North is, indeed, set a constraint aimed at limiting travel in the territory. It is required, in such a situation, to avoid any movement of physical persons entering and leaving not only from the new Red Zone, but also within it, except for proven working needs or situations of necessity or movements for health reasons.  It is, however, allowed to return to one’s own home or residence.

Police authorities will be entitled to hold citizens liable for their movements.

People with suspicious symptoms, such as respiratory infection and fever (over 37.5 °C), are strongly recommended to stay at home, limiting social relations.

On the other hand, there is a total ban on people who are subject to quarantine or have tested positive for the virus.

Finally, by means of an explanatory note to the Decree dated March 8th, the Ministry of Foreign Affairs specified that the aforementioned restrictions do not prohibit the travel for proven reasons of work of cross-border employees who – as long as they are not subject to quarantine or tested positive for the virus – will be able to enter and leave the concerned territories on their way to their place of work/home, being able to prove the reason for the travel by any means, including a statement that can be made to the police authorities in case of any checks.

Likewise, goods may also enter and leave the concerned  territories, their transport being considered as a work requirement: truck drivers  shall, therefore, enter and leave said territories as well as move within the same, provided that they are limited to the needs of delivery or collection of goods.

The monitoring of compliance with the aforementioned measures is under the responsibility of the Prefect of the Territory, who, where necessary, may have recourse to the Police. Unless the fact constitutes a more serious offence, failure to comply with the obligations set out in the Decree dated March 8th is punished pursuant to Article 650 of the Italian Criminal Code (Failure to comply with the provisions of the Authority – conduct punished, if the fact does not constitute a more serious offence, with imprisonment for up to three months or a fine of up to two hundred and six euros). As well as the Legislative Decree no. 9/2020, also today’s Decree is part of a constantly evolving regulatory framework.

The provisions introduced are mainly aimed at containing the spread of contagion and, consequently, at avoiding the overloading of hospital facilities.