The current situation is very serious and the measures implemented have been granted as a short term response to this crisis, however they will need to be strengthened. In this regard, we continue to wait for further intervention by the Government in order to address the colossal layoffs that will follow the end of the dismissal ban.
Decrees, orders or guidelines in effect and pertaining to reopening facilities.
- Law no. 40/2020 (ratifying with some amendments Law Decree no. 23/2020);
- Law Decree no. 34/2020 (regarding economic measures to help with the reopening and measures supporting employees);
- Decree of the Prime Minister dated 17 May 2020 (regarding the reopening schedule and modalities, implementing Law Decree no. 33/2020);
- Law Decree no. 33/2020 (regarding the reopening schedule and modalities, and fines related to breaches of the mandatory provisions);
- Law Decree no. 23/2020 (temporary measures to support companies’ cash flow and provisions related to the employer’s liability in the event of contagion in the workplace); and
- Law Decree no. 18/2020 (regarding, above others, measures supporting employers and employees).
Optimal approach to keep track of the latest updates.
Please refer to the following websites:
- salute.gov.it (Health Ministry);
- lavoro.gov.it (Employment Ministry);
- gazzettaufficiale.it/dettaglioArea/12 (Official Law Journal, COVID-19 Thematic Area);
- inail.it (National Institute for Insurance against Accidents at Work); and
- linkedin.com/company/lablaw/ (see Document Section of LABLAW’s LinkedIn profile for guidance).
Government subsidies and special relief resources allocated to support employers, and workers, in their efforts to maintain employment and pull through the crisis.
- Fund to save the employment levels of companies owning historical trademarks, having more than 250 employees and facing financial difficulties;
- Relief measures to contribute to remuneration costs, including social costs, of companies particularly affected by the pandemic in order to avoid dismissals during the length of the crisis (please note that individual and collective dismissals are suspended until 17 August 2020);
- Collective agreements at company level or at territorial level shall provide a different reorganisation of working time due to changed economic-productive needs of the company, using part of such reorganised working time for the attendance of training courses. The costs for the attendance of such training courses, including social contributions, shall be borne by a proper Fund;
- Employers that suspend or reduce the time worked in light of the COVID-19 emergency during 2020, may request an economic indemnity from the Government to be paid to the employees, to partially integrate the remuneration lost (e.g. temporary mass layoffs, called “Cassa Integrazione” in Italian legal parlance). Accordingly, employees should be entitled to 80% of the remuneration due to them, as indemnity for the hours not worked. Such a measure is granted up to a maximum of 18 weeks until 31 October 2020;
- The ban on dismissals (individual or collective) for objective reasons has been extended up to 5 months (previously it was for 2 months), starting from 17 March 2020, and, for the same period, those still pending, started after 23 February 2020, are suspended;
- As a way to effectively manage the restart of activities, it is possible to renew or extend until 30 August 2020 the fixed-term agreements in place as of 23 February 2020, even in the absence of the conditions required by Article 19 of Legislative Decree 81/2015;
- Contributions for April and May 2020 have been suspended until 16 September 2020, for companies that suffered a reduction in turnover of more than 33% or 50% in March 2020, depending on whether they had revenues of less or more than €50 million;
- In order to ensure the necessary cash flow to companies based in Italy affected by the COVID-19 epidemic, the company SACE S.p.A. provides guarantees until 31 December 2020 in favor of banks, national and international financial institutions and other authorised entities, for loans of any kind to the aforementioned companies. A company that benefits from the guarantee, undertakes to manage employment levels through trade union agreements.
- From 5 March to 31 July 2020, and for a continuous or split period not exceeding 30 days in total, employees with children not older than 12 years are entitled to a leave, with 50% of the remuneration (allowance paid by INPS). In addition, employees with children up to 16 years old have the right to abstain from work for the entire period of suspension of childcare services and schools, unpaid, with a ban on dismissal and the right to keep their job.
- As an alternative, the employee may choose to receive one or more bonuses to cover the costs of baby-sitting services for children up to 12 years old, up to a maximum of €1,200 gross, to be used for services from 5 March through 31 July 2020.
- There is an increase in the permits available for assistance of disabled family members. The ordinary 3 days of paid monthly leave, covered by imputed contributions, provided by law for such cases, have been increased by an additional 12 days to be enjoyed in May and June 2020.
Requirements mandated by law or any official guidance.
The mandatory measures declared in Article 2, paragraph 14, of Law Decree 33/2020 (the protocols having been attached to the Prime Minister’s Decree dated 17 May 2020) to be adopted by employers are set out in specific sector protocols and the Protocol signed by the Government and social parties on 24 April, with the aim of containing the COVID-19 virus.
Measures typically implemented by employers and the associated legal risks, limitations, obligations and issues to consider.
The implementation of the measures referred to in the aforementioned protocols (e.g. temperature monitoring, social distancing, use of masks and gloves and plexiglass separators) will fulfill the employer’s mandate with regards to the obligations to protect employees. It may lead, however, to modifications in the workplace and adjustments to time organisation, that could and should be prudently implemented, together with the unions. With reference to measuring employees’ temperatures, as well as carrying out serological tests on employees, particular attention must be paid to data processing and privacy issues.
Policies and procedures for telework once the business reopens.
Smart working is highly recommended whenever it is compatible with the employee’s tasks. Law Decree no. 34/2020 specifically provides that:
- Until the end of the epidemiological emergency caused by COVID-19 (currently until 31 July 2020), working parents employed 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 benefiting from income support instruments in the event of suspension or cessation of work or that there is no non-working parent, are entitled to carry out the work as smart working even in the absence of individual agreements, subject to compliance with the information obligations provided for in Articles 18-23 of Law 81/2017, and provided that this mode is compatible with the characteristics of the benefit.
- In addition, although limited to the duration of the COVID-19 epidemiological emergency, and in any case no later than 31 December 2020, the same simplified conditions of smart working, governed by Articles 18-23 of Law 81/2017, may be applied by private employers to any employment relationship.
Management of quarantine, childcare and medical leave for employees affected by COVID-19.
As provided for in Article 26, paragraph 1, of Law Decree no. 18/2020, the quarantine period with active surveillance or the period of fiduciary home stay with active surveillance of private sector employees, shall be treated as an illness for the purposes of the economic treatment provided for under the law, and cannot be counted for the purposes of the grace period.
Employees who fear infection and refuse to work.
There are no official guidelines on this. If the employer has implemented all the necessary safety measures, while always prioritising the use of smart working in all cases where it is compatible with the tasks carried out by the employee, a refusal not motivated, for example by proven health reasons, could lead to disciplinary action for insubordination. However, it is always advisable to consider, with caution, the need for the employee to be onsite when there are equally satisfactory alternatives.
Disclosure of employees who are infected.
If an employee is found to be infected, it will be necessary to isolate him/her from the other employees, to inform the competent Local Health Authority, and await their instructions on how to handle the employee’s situation, accordingly, thus allowing doctors to trace any contacts and define the contagion dynamics. The data must be processed in compliance with the GDPR.
To what extent can employers implement the following cost-reduction strategies as a result of COVID-19, and what are the primary limitations on each?
As customarily provided by the applicable NCBA or in accordance with any emergency laws (e.g. the abovementioned parental leaves) that may apply.
- Salary reductions.
Both individual and collective dismissals for objective reasons are prohibited until 17 August 2020 (subject to further extensions).
- Facility closure.
Given that the emergency regulations have finally provided for the option of using the temporary layoff fund for a maximum of 18 weeks, it is possible to close the plants for the whole period, since employees are guaranteed 80% of the salary, to be paid by INPS (National Social Security Authority).
Tips, recommendations and common pitfalls.
- Implement protocols and update policies, including the DVR (risk evaluation document);
- Inform and train employees;
- Institute smart working policies; and
- Limit business trips.