Prepared by Marzio Scaglioni and Giulia Baltimora
As is known, in consideration of the health risk associated with the continued spread of viral agents from COVID-19, the Decree-Law no. 105/2021 (converted into Law no. 126 of 16th September 2021), extended the national state of emergency to 31st December 2021 and dictated a series of urgent measures in order to face the current phase of epidemiological emergency, and to allow the exercise in safety of social and economic activities.
We hereby remind you that upon the expiry of the national state of emergency, the provisions on “simplified Smart-working” procedure will cease to produce their effects (article 11 Decree-Law 22nd April 2021, no. 52 – also defined “Decreto Riaperture”).
Therefore, unless further extension regulations take place, the day after 31st December 2021 employers who wish to continue to offer their workers the opportunity to work partly remotely and partly from company offices will no longer be able to make use of the simplified smart working procedure used during the pandemic period, but they must have a structured procedure and, in particular, they must sign an individual agreement with each employee concerned that is drawn up in accordance with the provisions of Articles 18 to 23 of Law 81/2017.
In particular, we would point out that the “ordinary” regulatory framework on smart working requires that the agreement, whether for a fixed or open-ended term, be drawn up in writing for the purposes of administrative regularity and proof and that it regulates, among other aspects:
- The way the work activity is carried out;
- The exercise of managerial power by the employer;
- The use of work tools made available to the employee;
- The worker’s rest time and the measures necessary to guarantee the right to disconnect from work equipment.
It is also recalled that, pursuant to Article 23 of Law 81/2017, the agile work agreement is subject to the obligation of communication to be made through the website of the Ministry of Labor in compliance with the ordinary deadlines set for “mandatory communications”.
With reference to agile work, it should also be remembered that until 31st December 2021 the so-called “fragile” workers have the right to perform their work remotely, also through:
- The assignment to different duties included in the same category or area of employment, as defined by the collective agreement applied.
- Carrying out specific professional training activities, even remotely.
In case the organizational solution of agile work is not feasible, the periods of absence from work are treated in the same way as hospitalisation in terms of compensation, provided that the period of absence has been prescribed by the competent health authority or by the primary care physician (Art. 26, par. 2 of Law Decree no. 18 of 17 March 2020, as amended).
On the other hand, periods of quarantine (with active surveillance or in a fiduciary home stay with active surveillance) spent by employees in the private sector pursuant to Article 26 of the same Decree-Law are equated with illness. Also in this case, it should be noted that the economic equalisation of quarantine periods with illness will cease to take effect after 31 st December 2021.
Among the “measures” whose term of validity is set at 31st December 2021, failing further extensions and/or regulatory changes, we also recall the provisions on the extension or renewal of fixed-term contracts (Article 17 of Legislative Decree no. 41/2021). In particular, by virtue of the aforementioned provision, the employer is entitled to extend or renew fixed-term employment contracts by way of derogation from Article 21 of Legislative Decree no. 81 of 15 June 2015, i.e. without the obligation to deduct the relevant reason in case of extension of a fixed-term employment contract with a total duration of more than 12 months, or renewal of a previous fixed-term contract.
In any case, the maximum overall duration of the individual fixed-term employment contract cannot exceed the limit of 24 months (article 93, par. 1 of Legislative Decree 19th May 2020, no. 34) and, as has had the opportunity to clarify the National Labor Inspectorate, the deadline of 31st December 2021 for the validity of the provision in question must be understood as referring to the formalization of the extension or renewal, so that the duration of the employment relationship may continue even after 31st December 2021 (National Labor Inspectorate, note 6th September 2020, no. 713).
Finally, the same “COVID-19” leave of absence, that is the period of abstention from work partially compensated by National Social Security Institute in favor of working parents who have a child suspended from teaching or educational activity due to COVID-19, or who have a child affected by the virus, as well as in the case of a child’s quarantine ordered by the competent Local Health Company, can be used by 31st December 2021.
For a deeper discussion, please contact:
PwC TLS Avvocati e Commercialisti