Edited by Payroll and Employment Team
On 29 July 2022 the Legislative Decree no. 105 of 30 June 2022 was published on the Official Gazette no. 176. The Decree implements the European Directive no. 2019/1158 which aims to improve the balance between working and family life of parents and caregivers for disabled people with the aim of pursuing a more equitable sharing of care responsibilities between men and women and of promote effective gender equality both in the workplace and in the family.
In particular, the aforementioned Decree amends and integrates the legal provisions already in force with reference to the protection of maternity and paternity, as well as the rights of people who assist disabled people (so-called “caregivers”).
The new regulatory provisions, as briefly summarized below, produce their effects starting from August 13th, 2022.
Compulsory paternity leave
The Decree makes structural leave lasting 10 working days (20 in the case of multiple births) which are entitled to benefit – continuously or split – the fathers in the period between the two months preceding the birth (or upon entry of the minor into the family / in Italy in the case of national / international adoption) and the five months following the birth. It should be remembered that, in the past, it was expected that the use of the leave would take place within five months following the birth, without the possibility of using it prior to the birth event).
The compulsory paternity leave, hitherto provided only for employees in the private sector, also applies to employees of public administrations.
On the other hand, the regulatory provision governing the father’s optional one-day leave, which the latter could take as an alternative to the mother’s compulsory leave, is repealed.
The Legislative Decree no. 105/2022 also makes significant changes to the rules on parental leave.
In particular, in order to offer real support to single-parent households, the maximum duration of parental leave due to the single parent or with sole custody of the child is extended from 10 to 11 months (of which 9 can be compensated at the rate of 30%).
The period within which the parents – natural, adoptive or foster – can take advantage of the compensated parental leave is increased from 6 to 12 years of the child’s life.
The amount of the daily allowance provided for periods of parental leave is increased, as the measure of 30% – which has remained unchanged – is now applied on a calculation basis that also takes into account the thirteenth installment, as well as bonuses and any further ancillary treatments (as is already the case for compensation for the period of maternity leave). In addition, unless otherwise provided for by collective bargaining, during the use of parental leave, parents will continue to accrue the right to severance pay, holidays, leaves, additional monthly payments and any other element that is not connected to the actual presence in service.
Finally, without prejudice to the overall limits on the duration of parental leave that parents can take, the new provision provides that the months of parental leave compensated by 30% are increased from 6 to 9. In particular, in addition to the three months, transferable, which are due to each parent, an additional period of indemnified leave of a total duration of three months is added, as an alternative, the latter not transferable (see Message no.3066 of 4 August 2022 for a clear breakdown of the leave periods that can be used by parents).
With reference to the operation of the new leave, INPS has clarified that, pending the necessary updates of the IT procedures, the same can be used with a request to their employer or client, unless the online application is subsequently submitted to INPS.
Extraordinary leave for caregivers
The right to take advantage of paid leave for a maximum duration of 2 years recognized to employees living with disabled persons in a situation of ascertained seriousness is also extended to the de facto cohabitant and to the party of a civil union (said extension was already recognized by the Constitutional Court and by the INPS).
For the purposes of recognition of the right, cohabitation may also be established after the submission of the application, as long as it is guaranteed for the entire use of the leave.
In this regard, INPS specifies that, pending the necessary update of the procedures for the electronic submission of applications, employees will be able to request permits (referred to below), as well as leave as amended by standard under consideration. However, pending the necessary updates of the telematic procedures, the de facto cohabitant who intends to take advantage of the extraordinary leave must enclose to the application a substitutive declaration of certification showing the de facto cohabitation referred to in article 1, paragraph 36, of law no. 76/2016 with the disabled person to be assisted.
Similarly, in the event that cohabitation is not yet established at the time of submitting the application, the applicant must enclose to the application a substitutive declaration of certification showing that he/she will establish cohabitation with the disabled family member in a serious situation before the start of the requested leave period and to keep it for the duration of the leave.
Permits for assistance to disabled family members in serious situations
The Decree provides for sanctions in relation to the prohibition of discrimination against workers who request or take advantage of the benefits provided by our legal system in relation to their condition of disability or that of those to whom assistance and care is provided.
Furthermore, the principle of the so-called “Single point of reference for assistance”, on the basis of which, in the previous system, with the exception of parents, who have always recognized the peculiarity of the role played, more than one employee could not be granted the possibility of benefiting from the days of permit for the assistance of the same person in a situation of strong disability.
The Decree, in fact, establishes that, without prejudice to the overall limit of three days, for the assistance to the same individual with disabilities, the right can be recognized – on request – to several subjects among the entitled persons, who will be able to benefit from it alternatively, between them. Also in this case, the beneficiaries include the de facto cohabitant and the part of the civil union.
As specified by INPS Message n. 3096 of 5 August 2022, the absence of the principle of the “single contact person” means that from 13 August 2022, several entitled persons can request authorization to use the permits in question alternatively, for assistance to the same disabled person serious.
Priority access to agile working
In line with the new contents of the Consolidated Law on maternity and paternity, the Legislative Decree no. 105/2022 also amends the legislation governing the so-called agile working (Law no.81 / 2017) providing for the right of priority, in accessing this form of working activity, of workers with children up to 12 years of age, or without any age limit in the case of children with disabilities.
The same priority is also recognized upon requests of the so-called workers “Caregivers”, or those who take care of the spouse, the other party to the civil union or de facto cohabitant, a family member or a related person up to the second degree, or – only in the cases indicated in article 33 , paragraph 3 of Law no. 104 – of a family member up to the third degree who, due to illness, infirmity or disability, even chronic or degenerative, is not self-sufficient and able to take care of himself, is recognized as invalid because he is in need of comprehensive and continuous long-term assistance duration, or has an accompanying allowance.
Right to transform the employment relationship from full-time to part-time
Another important change introduced by the decree in question concerns workers who, in order to assist family members suffering from oncological diseases or serious chronic degenerative diseases, have the right to transform their employment relationship from full time to part time. De facto cohabitants are now also included among those entitled to rights (the part of the civil union, on the other hand, was already provided).
Protection of maternity and paternity for self-employed workers and for workers enrolled in the INPS Separate Management
The right to maternity allowance provided for self-employed and freelance workers is also extended to any periods of early abstention from work motivated by serious complications of pregnancy or by persistent morbid forms that are presumed to be aggravated by the state of pregnancy itself (so-called “High-risk pregnancy”). In such cases, the indemnity is recognized, within the maximum limits already provided, even for the 2 months prior to the birth.
The right to take advantage of parental leave is now also recognized to the self-employed father worker (3 months for each of the parents) and must be enjoyed within the year of life (or from entering the family in the case of adoption or foster care) of the minor.
Finally, with reference to workers enrolled in INPS separate management (gestione separata inps), in accordance with what is established with reference to employees, the extension of indemnified parental leave is ordered which and passes from 6 to 9 months in total, of which three months are non-transferable between parents. Also in this case, the age of the child within which the relative allowance is due is raised to twelve years.
Finally, the law provides for a tightening of the sanctions provided for by our legal system in the event that the employer refuses, opposes or hinders the exercise of the rights protected by the Decree in question. This violation, if detected in the two years prior to the request for the new certification of gender equality or similar certifications, implies the failure to recognize the employer of the aforementioned certifications.
Further provisions envisaged by the so-called “Decreto Trasparenza” (Legislative Decree No. 104/2022): accumulation of jobs, minimum predictability of work and transition to more stable forms of work
In addition to what was reported in the newsletter of August 3, 2022, there are three further provisions envisaged by the Transparency Decree.
• Cumulation of employment relationships: art. 8 of the Decree prescribes the prohibition for the employer to prevent the employee from carrying out another activity outside the agreed working hours or to reserve him, for this reason, unfavorable treatment. Exceptions are made in the cases in which any second employment is detrimental to the health and safety of the worker (including compliance with the legislation on rest periods) or does not guarantee the integrity of the public service or is in conflict of interest with the main activity (while not violating the duty of loyalty).
• Minimum predictability of work: art. 9 of the Decree provides that the employer cannot require the employee to carry out the work activity if the working hours and its temporal location are not predetermined; as a result, the right of the employee to refuse to perform the service is recognized, without suffering any prejudice, even of a disciplinary nature. This provision does not apply (i) if the work takes place within predetermined reference hours and days, (ii) if the employee is informed by the employer of the assignment or service to be performed with a reasonable period of forewarning. Finally, if the employer has provided for a minimum number of guaranteed paid hours on a weekly basis, he/she must inform the emplyee that they comply with the measure indicated in the collective bargaining and that the wage increases are due as a percentage of the basic hourly wage and for hours worked in addition to the guaranteed minimum paid hours.
• Transition to more stable forms of work: art. 10 of the Decree prescribes the possibility, for the employee who has matured a seniority of at least six months with the same employer and who has completed any probationary period, to request the employer (in writing) recognition of a form of work with more predictable, safe and stable conditions, if available. The employee who has received a negative response can submit a new request after at least six months have elapsed from the previous one. Within one month of the employee’s request, the employer or the client shall provide a reasoned written reply. In the event of a repeated request by the employee with a similar content, natural persons as employers or companies employing up to fifty employees can respond orally if the reason for the response remains unchanged from the previous one.
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