Prepared by Francesca Tironi, Sara Tanieli and Paola Dell’Utri
In Note No. 10962 of July 5th, 2021, the Italian National Labour Inspectorate noted that, since there were no provisions for the extension of previous legal provisions, from July 1st, 2021 frail employees who are absent from work due to their condition of “frailty” will see such absence calculated for the purposes of the “protection period” (so-called “comporto”) and can no longer enjoy the right to carry out smart working.
More details are given below.
Definition of a frail employee
As specified by the Ministry of Health and the Ministry of Labour in document no. 13 of September 4th, 2020, the concept of fragility is identified in all those conditions of the health status of the employee resulting from previous diseases that could determine for him/her, in case of infection with Covid-19, a more serious or inauspicious outcome if compared with the general population.
In particular, at present, pursuant to Article 26, paragraph 2 of Law Decree no. 18/20, fragile subjects are identified in those public and private employees for whom the competent medical-legal bodies have ascertained a risk condition resulting from:
- oncological pathologies;
- carrying out life-saving therapies, including employees who have been recognised as having a serious disability under Art. 3(3) of Law no. 104/92.
As far as older employees are concerned, the interministerial circular mentioned above clarified that, on the basis of current scientific evidence, the age parameter does not in itself constitute a sufficient element for defining an employee as “frail”: in this sense, rather, “the greater frailty in the higher age brackets of the population should be understood in conjunction with the presence of co-morbidities that may integrate a condition of greater risk” (on this point, see also INAIL document no. 44/20).
Situation before July 1st, 2021
Pursuant to Article 26, paragraph 2 bis, of Law Decree no. 18/20, from October 16th, 2020 to June 30th, 2021 frail employees were granted the right to work in a smart mode, provided that the tasks carried out were compatible with this mode (, smart working allows for fewer constraints in terms of time and place in carrying out the tasks, without prejudice to the exercise of managerial power by the employer). For these types of employees, the right to smart working could also be achieved by assigning them to a different task (provided that it is included in the same category or area of classification) or by carrying out specific professional training activities, including remotely.
On the other hand, employees who carried out activities that could not be carried out in “smart” mode because they necessarily required the performance of the activity at the company’s premises (e.g. blue collar jobs), the possibility of being absent from work was provided, subject to the presentation of a medical certificate. Pursuant to Article 26, paragraph 2, of Decree-Law no. 18/20, from March 17th, 2020 to June 30th, 2021, such absence, considered as hospitalization, could not be counted for the purposes of the “protection period” (so-called “comporto”), with the result that such employees could not be dismissed if, considering the above period of absence, it exceeded that particular period of time – generally established by the collective agreement applied – in which the employee, although absent from work, has the right to retain his/her job.
Situation after July 1st, 2021
As mentioned above, as of July 1st, 2021, the pre-Covid provisions are back in force, with the result that currently
- frail employees no longer have a real right to smart working;
- absence from work due to their frail condition is taken into account for the purposes of working time.
Until July 31st, 2021, on the other hand, exceptional health surveillance remains in place, i.e. the request for the scheduling of medical examinations to protect frail employees and employees at greater risk of infection due to age or co-morbidity, forwarded by the employer to the competent doctor, if already present, or, in cases where the appointment of the competent doctor is not necessary, alternatively to the doctor specifically appointed for the emergency period or to the territorial services of INAIL (cf. Article 83 of Decree-Law no. 34/20, converted into Law no. 77/20 and Article 11, c. 1, Decree-Law no. 52/21, converted into Law no. 87/21).
As noted by INAIL, the introduction of the exceptional health surveillance is a significant innovation for the protection of employees’ health, by extending, although only for the period of the health emergency, the legal provisions on health surveillance contained in Article 41 of Legislative Decree no. 81/08 and ss.mm.ii. to protect all employees. Indeed, exceptional health surveillance allows the doctor, at the outcome of the examination, to express the opinion of suitability for the task of the frail employee, providing the employer with indications for the adoption of more precautionary solutions for the health of this employee against the risk of SARS-CoV-2. The judgement of temporary unsuitability for the job is instead reserved only for cases which do not allow alternative solutions (see INAIL document no. 44/20).
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