The COVID-19 emergency led the Italian Government to adopt on an urgent basis a number of measures aimed at protecting the health of Italian citizens and ensuring the survival of businesses. Pursuant to Italian law, an employer is responsible for the physical and psychological health and safety of the employees in the workplace and in this respect, give instructions and take safety measures as reasonably can be expected from the employer.
What current restrictions are in place by the government?
On 11 March, the Italian government announced new measures closing all non-essential businesses across Italy with immediate effect. All shops are closed apart from pharmacies and shops selling food and other basic necessities. Essential public services, transport, utilities, banks, and postal services will remain active. All public gatherings, including religious ceremonies, funerals and sporting events remain suspended. Restaurants, bars, museums, cultural institutions, childcare facilities, schools and universities are closed, as are ski resorts. The majority of carriers have now ceased operating direct flights to Italy.
The Italian authorities have advised against travel for tourism purposes throughout Italy, and that tourists already on holiday in Italy should limit their movements to those necessary to return to the place where they live.
From March 12th until April 3rd, people throughout Italy are being asked to stay indoors and venture outside only for the bare essentials. Since the quarantine rules have been tightened, all stores except for pharmacies and food shops are shut in a bid to stop the spread of the coronavirus, allowing persons to leave their home only for:
- An urgent, demonstrable, work-related reason
- “Situations of need”, for example to buy food and other basic necessities
- Health reasons, for instance an urgent doctor’s appointment
- Returning home
Police can stop anyone at train stations, on roads or simply on the street – including pedestrians – and ask them to justify the reason they are outside. Everyone is now required to fill out a standardized form stating their reason for being outside and submit it to authorities, if asked. There have been reports of police handing out fines to people caught travelling in Italy without an ‘essential’ reason, even within their own town. If stopped and checked, a police officer may ask for ID and request to countersign the form to confirm identity.
What are the general principles an employer should or could apply?
The measures were first implemented for highly contagious areas (so-called “red” and “yellow” areas); subsequently, when the Decree dated 8 March 2020 was enforced, these areas were replaced by “forced containment” areas, within which certain restrictive safety measures are applied; overnight between 9 and 10 March, the restrictive measures that were being applied in Lombardy and 14 other Italian districts were extended to the entire national territory; on 11 March the Italian Government implemented a new Decree to order the suspension of all retail and wholesale commercial activities, with the sole exception of basic public services and including bars and restaurants.
In the light of The COVID-19 emergency, the employers are strictly encouraged to:
- Implement a (verbal) policy to decrease face-to-face meetings and travel less, both professionally and privately
- Assess the risks faced by employees & visitors and implement measures to mitigate those risks, paying particular attention to vulnerable staff (such as those who are pregnant; with impaired immunity; on secondment or working away from home)
- Review the need for flexible working arrangements and whether existing contracts and working arrangements permit such flexibility, and if not, consider how this might be achieved
- Review policies governing business travel, holidays, sickness, caring for dependents and home working to ensure a reasonable and consistent approach, taking account of their risk assessment and government guidance
- Review relevant insurance policies and guidance issued by their insurers
- Update contact details for staff and management
- Devise arrangements for dealing with staff who have to travel abroad; who may be at particular risk of contracting CoVID-19; or who report symptoms and may have CoVID-19
Can an employer force an employee to work from home?
Yes. At least for a period of 6 months starting from 31 January 2020, all over the “COVID-19 emergency”, it is highly recommended that employers adopt smart working to the maximum extent possible and suspend operations in those units, which are not strictly necessary for their business. Moreover, smart working may be regarded as mandatory in order to lock down protection of all employees under the circumstances. As of 1 March 2020, Italian legislation provides for a simplified procedures to implement smart working in the Italian territory:
No Prior Written Agreement with the Employee
Under normal circumstances, smart working may be carried out through a special agreement entered into by the employer and the employee. Under the “COVID-19 emergency,” a formal and special agreement to implement smart working is no longer required, and the employer shall merely inform the employee in writing on how smart working has to be performed by the latter, with a particular focus on:
- ways under which the employer may exercise hierarchical and supervisory powers;
- the employee’s resting time;
- the technological and organizational measures put in place to ensure compliance with laws regarding resting hours — including “right to disconnect” from remote working;
- the employee’s misconduct subject to disciplinary sanctions;
- The employee’s right to be appropriately trained, if needed.
Health and Safety Information
Employers are required to deliver information on risks regarding health and safety at work to employees working remotely. Under the current health emergency, the above information should be implemented with a provision stating that the employee should refrain from carrying out his/her working activity in places where there is a risk of infection (e.g., public or crowded places) and may be sent to employees by email as opposed to hard copies. Additional information is available under the employment law in Italy which can be accessed on the following link:
If an employee is sent home, then what measures do employers have to take?
An employer must ensure that the employee is also working in a healthy and safe workplace at home.
If on request of the employer, the employee should stay at home due to a suspicion of being infected, does the employer still have to pay the salary?
Yes. We refer to our answer above. This also applies if the employee is not able to work from home.
If the employee is quarantined, does the employer still have to pay the salary?
If an employee is prevented from working due to a medical quarantine or mandatory quarantine, he/she shall be put under sick leave. For employees other than executives, sick leave is paid by the Italian Authorities (with the exception of the first three days of sick leave, usually paid by the employer). Once sick leave has come to an end, the employee is required to return to work. If the employee fails to do so, further absences may be considered unjustified, and the employer may be entitled not to pay the relevant salary and to even issue a disciplinary sanction against the employee.
What is the situation under lock down if the employee cannot work?
If employees cannot work from home, they have to go to their workplace. In case of absence of work, the employer can ask its employees to take leave or offer to apply for unemployment benefits. Unemployment benefit would be payable for a maximum period of 9-week period. The eligibility criteria for unemployment benefit is determined on a case by case basis. The application can be filed from INPS, however as of today the procedure has not been communicated yet.
What if the employee refuses to come to the office?
If an employee unilaterally decides, even in the absence of an order issued by the Public Authorities, not to go to work due to his/her fear of being infected, the absence may be considered unjustified. As a consequence, the employer in this scenario would be entitled to trigger a disciplinary procedure against the employee and issue a disciplinary sanction, which (depending on the national collective bargaining agreement applied) might also entail dismissal in the event of unauthorized absence longer than 3 days.
Nonetheless, nothing would prevent the employer from agreeing to provide a period of unpaid leave to its employees who are fearful of becoming infected.
What happens in suspension of business is due to an order issued by the Public Authority?
In case of suspension of business activities due to an order issued by the Public Authorities, being out of the employer’s control as well, the employer should not be obligated to pay remuneration to its employees, since the employer’s inability to run its operations is beyond employer’s control.
If childcare services and/or schools are closed, is it allowed for the employee to stay home? If yes, is the employee still entitled to his/her salary?
If the schools are closed and the employee is not able to work from home (in case of essential services) and cannot get a babysitter or carer for the children, such employee can opt for special paid leave for a maximum of 15 day, 50 % of the cost would be reimbursed to the employer by INPS.
Can an employer forbid his employees to travel abroad privately and/or on business purposes?
Yes, an employer may restrict business travel, monitoring the travel advisories and daily updates issued by WHO and governmental authorities.
Employers may not prevent employees from undertaking personal travel to an affected area. However, pursuant to various current decrees, employers must notify the relevant public health authorities if the employer reasonably believes that an employee travelled to a high-risk country or area.
Can an employer oblige employees to travel abroad (to risk areas) for business?
Since employers are obliged to safeguard the health and safety of employees, even when on business travel and should such employers not handle risks that employees may incur while travelling on business in an effective manner, employers may be liable for any resulting harm to its employees. Therefore, in accordance with the Decree dated 8 March 2020, employers are strictly encouraged to diminish transfers and travel over the course of the “COVID-19 emergency,” to offer their employees proper level of protection from Coronavirus infection. Therefore, employers should prevent employees from travelling on business throughout the course of the “COVID-19 emergency” period and assess options to physical meetings by using digital tools such as conference calls or videoconferences.
Can an employer force the employee to take holidays on (very) short notice?
Under the “COVID-19 emergency,” Italian Government recommends employers that employees are granted with holidays and permits to leave to the maximum extent possible. With further respect to this, employers are encouraged to execute with work councils/trade unions specific collective agreements at a company level aimed at planning use of holidays and permits to leave throughout the “COVID-19 emergency.”
The opportunity offered by the execution of an ad hoc collective agreement at a company level could even allow companies to meet employees’ needs during the emergency and grant them, for example, additional and special parental leaves or special measures for working mothers.
In addition, should an employer apply for Cassa Integrazione Guadagni Ordinaria, employees may be required to immediately join all the remaining holidays and permits to leave accrued pro rata temporis and still not spend in advance of entering into force of the public scheme.
Can an employer force the employees to cancel their holidays on short notice?
In principle, an employer cannot force the employees to cancel their holidays. Employers can recommend employees not to travel or at least not to travel to risk areas, and if they do travel to risk areas, the employer could consider taking disciplinary actions that need to be determined per case taking into account the reasonableness and fairness.
Can the employer ask employees whether they have recently visited a risk area and if yes, what can the employer do?
Yes, may require an employee to confirm and specify where he/she has spent the past 15 days in order to assess the level of risk to the workforce. Employers may not, however, ask employees to confirm that they are not infected or request a medical certificate to the same effect. The employer can request the employee to visit the company doctor and send the employee home. Insofar as possible, the employee can continue to work from home.
Can employers take the temperature of an employee?
Given the current emergency situation, employers may consult with the doctor to determine whether taking employees’ temperatures may be considered an adequate measure to protect the health and safety of the workplace. To comply with Italy’s privacy regulations, the temperature reading should be handled only by the employee who will then report it to the health professional to avoid disclosing the information to other individuals.
The Italian DPA allows body temperature to be measured by sticking to the following restrictions:
- The result of the measurement must not be recorded;
- The employee’s name should not be recorded, unless he/she must be identified because access to the premises has been denied due to fever;
- A privacy notice is submitted to the employee clarifying (i) the purposes of the data processing, i.e., limiting COVID-19 contagion; (ii) the duration of storing the data, i.e. the state of emergency (currently, 6 months) and (iii) the persons in charge of processing the data. Additionally, in case access to premises is denied to an employee, the right to privacy and dignity of such person must be ensured.
In case the employee’s temperature is higher than 37.5 C° the access to the workplace is denied. The person who has flu symptoms must promptly contact his/her physician and stick to the relevant prescriptions. This position expressed by the Italian DPA suggests that caution should be exercised when collecting such information, which should be evaluated on a case-by-case basis in light of factors such as the peculiarities of the case, the area in which the company operates and the tasks of the employees.