Extension of the state of emergency and “emergency” labor measures

Prepared by Marzio Scaglioni and Paola Barresi

In force since December 24th, the Decree-Law n. 221 extended the anti-Covid state of emergency until 31 March 2022, as well as numerous provisions aimed at containing the spread of the epidemic that could have negatively impacted  the performance of the main social and economic activities. On the other hand, several of the special labour law measures linked to the pandemic, still in force, have not been further extended by the Legislator until now.

In fact, in addition to the discipline about the duration of green certifications, maintaining the penalties for companies that do not carry out the necessary checks in the workplace, as well as with regard to mandatory protective devices, the decree provides for the extension, by 31 March 2022, of the deadlines of some provisions of the pandemic labour law legislation, for which it is possible to assume, until now and in the absence of further specific regulatory provisions, the exclusion from the extension of other provisions currently in force until 31 December 2021.

Referring to the provisions of “Decreto Rilancio”, Article 16 of the last Law Decree confirms “simplified Smart-working” procedure for communicating smart working activities, in the absence of agreements with individual workers, as instead provided for by the ordinary regulations (Law no 81/2017).

Furthermore, as by article 17, remain in force the protections for “fragile” workers (article 26, paragraph 2bis of “Decreto Cura Italia”). Fragile workers, identified with a certificate of risk deriving from immunosuppression, from oncological pathologies or related life-saving therapies, will retain the right to carry out their work activity from home, also through the assignment to different duties included in the same category or area of ​​employment, based on a ministerial decree, to be adopted by 24 January, which will identify “chronic diseases with low clinical compensation and with particular connotations of gravity, in the presence of which, until 28 February 2022, the work performance is normally carried out from home”. In any case, according to the law, remote work performance for “fragile” workers will be possible no later than 28 February 2022, regardless of the adoption of the decree. On the other hand, it should be noted that, if the smart working solution would not be feasible, the absence from work will no longer be treated in the same way as hospitalisation in terms of compensation.

As indicated in the Annex A (point 15), the validity of article 83 of Legislative Decree no. 34/2020, with regard to the obligation of health surveillance for workers most exposed to the risk of contagion and for which the company doctor or the Inail doctor will be able to ascertain the unfitness for the job, is extended. If possible, the workers may be assigned to different duties, but it is well understood that the inability to perform the duty, and therefore the period of non-activity, cannot in any case justify the employer’s withdrawal from the contract, at least until the date of the end of the state of emergency.

In conclusion, referring to the last “Decreto Fiscale”, the same “COVID-19” leave of absence has also been extended until 31 March 2022 as periods of abstention from work partially compensated (50%) by INPS for working parents with children under 14 years of age, in the event of a) suspension of teaching activities in attendance; b) contraction of the covid-19 virus; c) in the event of quarantine of the child ordered by the competent ASL. Unpaid Covid leave for parents of children between 14 and 16 years of age has also been extended.

Turning to the provisions excluded by this decree, the Legislator has not yet ruled on the extension or renewal of fixed-term contracts (Article 17 of Legislative Decree no. 41/2021), for which, pending further specific regulatory provisions, it is reasonable to assume the date of 31 December 2021 as the deadline for the application of the special discipline. Then, until now, the provision for which the absence for quarantine, either with active surveillance or in fiduciary home permanence, was equated to the disease without counting it in the “time of respite”, ceasing to take effect after 31 December 2021.

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Marzio Scaglioni

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