Prepared by Francesca Tironi, Silvia Basile and Giada Contini
During the emergency period from COVID-19, we have seen some significant changes -some transitional, some, as we will see, permanent- to the Smart Working.
Smart Working, in fact, is a mode of execution of the employment relationship, established by agreement between the employer and employee and characterized by the absence of precise time or place of work constraints, with the possible use of technological devices to carry out the work activity. The normative regulation of this case is contained in Articles 18 to 24 of Legislative Decree 81/2017. As anticipated, however, during the health emergency period, several regulatory measures introduced a “transitional” discipline of Smart Working, thus creating the new case of “simplified” (or “emergency”) Smart Working.
The main features of “simplified” Smart Working include: (a) the absence of the agreement between employer and employee, resulting in the employer’s ability to unilaterally place the employee in Smart Working; (b) the possibility of fulfilling occupational health and safety informative obligations through a telematic communication; (c) the right to Smart Working for employees in the private sector who have at least one child under the age of 14, provided that there is no other parent in the household who is the beneficiary of income support measures, in the event of suspension or termination of employment, or that there is no non-working parent, and always provided that this modality is compatible with the characteristics of the work performance; (d) the right to Smart Working for “fragile” workers, provided that this mode is compatible with the characteristics of the work performance; (e) the simplified procedure for mandatory reporting to the Ministry of Labor.
Originally, the use of “simplified” Smart Working was supposed to be possible until the end of the state of emergency, which occurred on March 31, 2022. However, Decree Law 24/2022 conv. in l. 52/2022 extended the possibility of using this simplified modality, providing these deadlines: (i) until August 31, 2022, concerning the employer’s option to unilaterally place the employee in Smart Working (sub a), to fulfill the health and safety information with telematic communication (sub b), to make use of the simplified procedure for communication to the Ministry of Labor (sub e); (ii) until July 31, 2022, concerning the right to Smart Working for parents of children under 14 (sub c), and for “fragile” workers (sub d).
Actually, for the right to Smart Working for parents with children under the age of 14 and for “fragile” workers, a further extension was expected in the August, with the “Decreto Aiuti Bis”; however, in the final version of the Decree published in the “Gazzetta Ufficiale” (L.D. 115/2022) such an extension was not provided, so these rights ceased to exist on July 31, 2022. On the other hand, the Draft Law for the conversion of the “Decreto Semplificazioni” (L.D. 73/2022) was recently approved; in this regulatory text, whose publication in the “Gazzetta Ufficiale” is awaited, an amendment to Article 23 of Legislative Decree 81/2017 is provided for, which foresees, as of September 1st, 2022 – and therefore, after the “emergency” Smart Working ceases to exist – the simplified procedure for the mandatory communication to the Ministry of Labor.
So, as of today, the state-of-the-art of Smart Working is as follows: on July 31, the right to Smart Working for parents of children under 14 and “fragile” workers ceased to exist; until August 31, it is possible to recur to Smart Working without an agreement between employer and employee, using the simplified procedure for mandatory communication to the Ministry of Labor. As of September 1st, the possibility of resorting to “simplified” Smart Working will definitively lapse, necessarily having to return to the Smart Working governed by Legislative Decree 81/2017, albeit with a novelty: the simplified procedure for communication to the Ministry will remain.
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