Preapared by Marzio Scaglioni and Leila Rguibi
In order to contain and manage the epidemiological emergency from COVID-19, the Italian Government has provided – since the first legislative measures adopted over the last months – the possibility for employers throughout the national territory to use the smart working in simplified mode (see former News Alert no. 10/2020).
Finally, according to so-called “Rilancio Decree” it has been provided that within the epidemiological state of emergency from COVID-19, whose deadline is currently set at July 31, 2020, parents employed in the private sector who have at least one child aged between 0 and 14 are entitled to smart working if the other parent is not unemployed or in receipt of income support instruments related to suspension or termination of employment and if smart working is compatible with the performance characteristics executed.
Until the date of July 31, 2020, therefore, employers throughout the national territory will be able to use smart working even in the absence of the written agreement between the parties that the “ordinary” regulatory framework on smart working considers instead an essential condition (cfr. Law no. 81/2017).
However, compliance with the information requirements laid down in the legislation on smart working remains unaffected. In particular, with regard to the information requirements concerning the general and specific risks involved in carrying out the work activity in smart working, it is provided that the same can be performed electronically using the documentation made available on the INAIL website.
We also remind you that the start of smart working is subject to mandatory communication that must be sent electronically on the website of the Ministry of Labour within 24 hours before the start of smart working. Also in this front, the so-called “emergency” regulations has provided the possibility for the employer to use simplified formalities.
The simplified procedure that we have reconstructed so far can no longer be used after July 31, 2020 (unless further regulatory provisions intervene to change the date of cessation of the status of epidemiological emergency by COVID-19).
Employers who intend to continue with the use of smart working even after the date of July 31, 2020 must necessarily regulate this mode of work through the conclusion of an individual agreement of which target every worker affected by smart working.
The individual agreement will have to regulate, inter alia, the way in which the work is carried out outsides the company sites with reference to the places where the work can be performed and working time. It should be pointed out, in fact, that the provision of smart working can be carried out, by express provision of the law, without any restrictions on working time but in any case, respecting the limits of maximum daily and weekly working time, arising from law and collective agreement. The smart working agreement will also have to regulate the forms of the employer’s managerial power, as well as the technological tools used by the employee to carry out his work.
Hence, the need (as well as the mandatory) to regulate in an agreement between the parties all the aspects related to the performance of the work in smart working.
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