The new situation of frail employees in the light of Decree-Law n. 105/21

Prepared by Giulia Spalazzi, Sara Tanieli and Paola Dell’Utri

In the newsletter published on July 22nd 2021 (to which reference should be made for further details) it was noted that, since there had been no provision for extending the previous provisions, from July 1st 2021 so-called “frail” employees could no longer be considered as having a real right to carry out tasks in flexible mode (“smart working”). This interpretation was also provided by the Italian National Labour Inspectorate in Note no. 10962 of July 5th 2021.

However, by the entry into force of Decree-Law no. 105/2021, published in the Italian Official Gazette on July 23rd 2021, the state of emergency provided for by Article 26, paragraph 2 bis of Decree-Law no. 18/20 has been extended once again, providing, with retroactive effect  from July 1st 2021 until October 31th 2021 (the date coinciding with the end of the state of emergency, unless further extensions are necessary), the right of frail employees to smart working, provided that the tasks they perform are compatible with this mode.

It should be noted that for these employees, the right to smart working can also be granted 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.

In the absence of specific provisions, and since no extensions have been made on this point, the interpretation provided by the Italian Labour Inspectorate regarding the period of protection called “periodo di comporto” can still be considered applicable, so that  frail employees who carry out activities that cannot be performed in “smart” mode and who are absent from work due to their  condition of “frailty”  now see their absence counted for the purposes of  “periodo di comporto”, differently from what was exceptionally provided for until June 30th 2021.

Let’s Talk

For a deeper discussion, please contact:

Francesca Tironi

PwC TLS Avvocati e Commercialisti


Giulia Spalazzi

PwC TLS Avvocati e Commercialisti

Senior Manager