Law no. 104/1992 leaves: new INPS instructions for vertical or mixed part-time

A cura di Marzio Scaglioni e Paola Barresi

With the circular no. 45/2021 of March 19, INPS updates the operating instructions for the recognition, in a proportionate way, of the three days of monthly leave in favour of employees who assist disabled family members in cases of vertical or mixed part-time.  

Article 33 of Law no. 104/1992 recognizes the employee, public or private, who assists a disabled person in a serious situation, spouse, relative or similar within the second grade, or within the third grade if the parents or the spouse of the disabled person have sixty-five years of age or who are also suffering from disabling diseases, the right to benefit from three days of paid monthly leave covered by figurative contribution, even on a continuous basis.

Over the last years there has been a long discussion on the legitimacy of the proportioning of this monthly leave in part-time activities, with various interpretations by Authorities and Courts.

With the most recent Message no. 3114/2018 INPS took the opportunity to reiterate the rules for re-proportioning the days of leave to be granted to part-time workers “due to the reduced amount of work performance”, ex. article 7 of Legislative Decree no. 81/2015, according to the principle of non-discrimination.

The jurisprudence of the Supreme Court has a different opinion, which with judgments no. 22925/2017 and no. 4069/2018 interpreted rules in favour of workers, considering the leave as an instrument of social assistance policy which aims to assist the person with severe disabilities in the family context, as a fundamental right of the individual (Article 32 of the Constitution. ) and falling among the inviolable rights (Article 2 of the Constitution).

The reasons of the Court were based on an accurate analysis of Article 4 of Legislative Decree no. 61/2000 which distinguished between the rights of part-time workers and the related economic treatments, contemplating the possibility of a compression of the measure only for the latter and not also for the legal sphere of worker’s rights. Indeed, the Court separated between those institutions that have a patrimonial connotation and which are placed in close correspondence with the duration of the work performance, admitting its re-proportioning, and institutions attributable to an area of ​​rights with a not strictly patrimonial connotation, to be safeguard from any reduction connected to the lower duration of work performance.

In spring 2020, the Ministry of Labour, with the explanatory circular no. 3, recognizing an additional 12 days of leave for the pandemic period, shared the Court’s interpretations.

After years of debate, with the circular no. 45, INPS finally intervened by adapting to the provisions of the Supreme Court and the Ministry of Labour, revising the calculation to be applied and the field of application of the re-proportioning.

Starting from the principle according to which the right to use the leave is not compressible, we distinguish between:

  • vertical and mixed part-time with several days greater than 50% of the ordinary one, for which the re-proportioning provisions already provided with Message no. 3114/2018 are applicable and
  • activities performed on a part-time basis with a percentage “starting from 51%” for which the three days of monthly leave will be fully recognized.

Furthermore, the rules for dividing the same leave into hours are confirmed for all types of part-time.

Based on the latest rules introduced, on the practical side, an accurate and precise management of the case will be necessary, considering all the possible cases and the relevant variables.

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