Green pass in the working places

On 21 September 2021, Law Decree 127/2021 was published in the Official Gazette, which, in relation to private employment for the period 15 October – 31 December 2021 is providing the following obligations and accomplishments:

1. any person carrying out a work activity must have obtained and must present their green pass on request in order to gain access to their place of work;

2. the obligations related to mandatory vaccination already provided for school employees, health professionals and employees at residential, social care and social health facilities are confirmed (for further details please see Q&A #5);

3. the obligation under the first point above applies to anybody who carries out work, training or voluntary activities in the workplace, regardless of the kind of relationship, and includes those engaged through service contracts;

4. those exempt from the vaccination are not obliged to obtain and show a green pass if they can provide a medical certificate that meets the criteria defined by the Ministry of Health;

5. employers must (i) also verify compliance with the requirements provided for access to workplaces in relation to providers; (ii) define by 15 October 2021, the operating procedures for checks, providing for priority, where possible, that such checks are carried out at the time of entry to a workplace and (iii) formally identify the persons responsible for ascertaining breaches of obligations;

6. green pass checks are carried according to what provided by Prime Ministerial Decree of 17 June 2021 (via the VerificaC19 app);

7. in order to protect the health and safety of employees in the workplace, employees who have not obtained a green pass or who are found without it at the point of entry to or in a workplace, are considered absent from work without justification until such a pass is presented. The rule is valid until 31 December 2021; this will not incur disciplinary consequences, save for misconduct, and the right to employment will be maintained. No salary or other remuneration or consideration, however named, is payable for the period of absence;

8. upon employer’s request connected to specific organisational needs aimed at ensuring effective work scheduling, employees are required to provide the above information timely in adavcne to meet the aforementioned organisational needs (introduced by Chapter I of Legislative Decree 139/2021 “Urgent provisions for access to cultural, sporting and recreational activities”);

9. for companies employing fewer than 15 employees, if the green pass is not presented within five days, the employer may suspend and replace the employee for a period not exceeding 10 days, and not beyond the aforementioned date of 31 December 2021;

10. the access by the employees to the workplace in violation of the obligations provided under points above is punished with the sanction referred to in the following point 10 as well as with disciplinary measure provided by each sector;

11. in the event of violation of the obligations of (i) verification, (ii) adoption of organisational measures and (iii) access to workplaces, unless the occurrence constitutes a criminal act, an administrative fine between € 400 and € 1,000 for (i) and (ii) and between € 600 and € 1,500 for (iii) is applicable. If the violation implies the use of a vehicle, the sanction is increased by up to a third. In the case the violation is repeated the fine is doubled;

12. penalties are applied by the local government office (prefetto) and are laid down by officials, officers and agents of the state or of the regions, provinces and municipalities.

First Q&As

1 – Do the obligations of verification, adoption of organisational measures and access to workplaces also apply in relation to self-employed workers (consultants, contractors, etc.)?

YES – in view of the scope and objectives of the decree and the wording used in it (article 3, paragraphs 1 and 2).

2 – Do the obligations of verification, adoption of organisational measures and access to workplaces also apply to owners, directors and members of administrative and control bodies (BoD)?

The decree is addressed to those who carry out work or collaboration activities, regardless of the type of employment (article 3(1) and (3)). Bearing in mind the scope and objectives of the decree, the necessary reference to the regulations protecting health and safety at work and the relevant definitions (article 2087 of the Civil Code and Legislative Decree 81/2008), it is deemed that the obligation also extends to directors who carry out operational activities and to company owners who access the workplace.

3 – Do the obligations of verification, adoption of organisational measures and access to workplaces replace the precautions (social distancing, mask, prescreening, etc.) already in place in compliance with national anti-Covid protocols?

NO – in the absence of a specific provision in the decree, the instructions contained in the emergency regulations and in the national protocols are still valid until the end of the health state of emergency (31 December 2021). Therefore, the obligations provided in the decree are additional.

It should be noted that article 29 bis of Law Decree 23/2020 provides that the adoption and application of the requirements laid down in the national protocols against covid-19 are considered compliant with the obligations of protection under article 2087 of the Civil Code (which has implications in terms of civil and criminal liability also under Legislative Decree 231/2001) in relation to covid-19 infection at work.

4 – How do the obligations of verification, adoption of organisational measures and access to workplaces provided in the decree coordinate with the indications of the Data Protection Authority?

It was expected an intervention of the Data Protection Authority in review of its position expressed in recent decisions and opinions (and FAQs), whereby a vaccination certificate cannot be deemed mandatory to allow access to the workplace or services, or the performance of an employment relationship, if not provided by a specific law. The decree’s reference to the methods provided for by the Prime Ministerial Decree of 17 June 2021 (through the “VerificaC19” app), however, suggested a ban on the indiscriminate recording of data related to green pass checks.

Data Protection Authority has published on October 12, 2021 its favourable opinion on the draft Prime Ministerial Decree currently being issued, which introduces new methods for verifying green passes in the public and private sector. According to this opinion, the checks should not involve the collection of data from the employees in any form, with the exception of those strictly necessary, in the workplace, to enforce the provided consequences connected to the lack of certification, without acquiring data that may, even indirectly, reveal health conditions or personal beliefs. The opinion then indicates the guidelines for the operation of the four technical solutions being adopted (VerificaC19, SDK, Piattaforma NoiPa and INPS portal) that will allow the display of only the information related to existence of a valid green pass, with a prohibition on retaining the QR code of Covid-19 green certifications checked, as well as extract, consult, record or otherwise process for further purposes the information collected from the reading of QR codes and information provided as a result of the checks.

5 – What are the obligations in relation to employees working in healthcare facilities?

The obligations in question are regulated by art. 4bis of L.D. 44/2021 and concern all individuals, including external ones, who carry out theri work, in any capacity, in hospitality and long-term care facilities, assisted healthcare residences (RSA), hospices, rehabilitation facilities and residential facilities for the elderly, including non-self-sufficient, and, in any case, in all residential facilities that provide in-patient care to people who cannot be cared in day hospital or out-of-hospital settings, care services in the phase immediately following an ordinary acute hospital stay or an episode of exacerbation of a disabling pathology, and in socio-assistance services (Health Care Employees).

From 10 October 2021, until 31 December 2021, all Health Care Employees are obliged to be vaccinated against SARS-CoV-2 infection, except in the case of exemption with medical certificate.

The responsible persons in charge of the aforementioned facilities and the employers of the health care employees are obliged to ensure compliance with this obligation, acquiring the necessary information according to criteria that will be defined in the DPCM.

Health care employees who have not been vaccinated cannot carry out activities or tasks that involve in-person contact or the risk of spreading contagion. Until the fulfilment of the vaccination obligation or the completion of the national vaccination plan (no later than 31 December 2021), such employees must be assigned to different duties without a salary reduction. The reassigned roles must also be carried out in such a way that avoids the risk of spreading the coronavirus infection or, if not possible, such employees must be suspended from work without the right to salary or any other form of remuneration or compensation.

Violation of the obligations of verification and access to workplaces is punishable by fines ranging from €400 to €1,000, unless the act constitutes a crime.

6 – Who should carry out the checks on the green pass of temporary employees?

Checks must be carried out both by the agency and by the user company where the employee works.

7 – Who are the employees subject to the control obligation?

Employees who are actually on duty and have access to the workplace must be checked, excluding employees who are absent due to holidays, illness, leave or who work in agile mode. In relation to the latter, it is not possible to use smart working in order to allow employees without a green pass to carry out their work.

8 – Is it possible for the employer to check the green pass in advance?

Article 3 of DL 139/2021 provides that upon employer’s request connected to specific organisational needs aimed at ensuring the effective scheduling of work, employees are required to provide information on the possession of the green pass timely in advance to meet the aforementioned organisational needs.

The provision is poorly coordinated as it would complement the general rules concerning all the private sectors, but it is inserted within a provision entitled ‘Urgent provisions for access to cultural, sporting and recreational activities, for the organisation of public administrations and the protection of personal data‘, under Chapter I which is headed ‘Urgent provisions for access to cultural, sporting and recreational activities‘. The scope of the provision is therefore unclear and, at the very least, raises doubts about its interpretation. The express reference to “specific organisational needs” also raises an operational issue that could lead to consider the application of the rule as limited to specific cases, excluding the employer’s right and the employee’s obligation to be controlled in advance in case of ordinary work planning needs, with all the consequences also in terms of privacy (given the restrictive interpretation provided by the Data Privacy Authority on the matter). We therefore recommend extreme caution in applying the provision.