Green pass in the working places

Law no. 165 of 19 November 2021, converting, with amendments, Law Decree no. 127/2021, was published in the Official Gazette no. 277 of 20 November. Below is the updated list of the main provisions in relation to private employment for the period 15 October – 31 December 2021 and our FAQ.

  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 (see FAQ # 5);
  3. the obligation under the first point above applies to anybody who carries out work, training (learners included) 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 a workplace in relation to providers; (ii) define by 15 October 2021 the operating procedures for checks, including sample 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 the provisions of the Prime Ministerial Decree (DPCM) of 17 June 2021 2021;
  7. employees can request to hand over a copy of the green COVID-19 certification to their employer, thus exempting them from controls for the duration of the validity of the certification;
  8. 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;
  9. in the event of a request by the employer, arising from specific organisational requirements aimed at ensuring effective work scheduling, employees are required to provide the above information with the advance notice necessary to meet the aforementioned organisational requirements (introduced by Chapter I of Legislative Decree 139/2021 “Urgent provisions for access to cultural, sporting and recreational activities”);
  10. if the expiry of an employee’s COVID-19 green certificate occurs during the working day, the employee may remain at the workplace in order to complete the working day;
  11. It is the responsibility of the user to verify the COVID-19 green certificate for temporary workers; it is the responsibility of the employer to inform workers of these requirements;
  12. 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 the duration of the employment contract executed to replace the suspended employee, in any case not exceeding 10 working days renewable until 31 December 2021, the replaced employee will not incur disciplinary consequences and his right to employment will be maintained;
  13. employers and employees who violate the obligations listed above are subject to the following: an administrative fine of between €400 and €1,000 for lack of verification and adoption of organisational measures, and between €600 and €1,500 for access to a workplace, unless the occurrence constitutes a criminal act. If the violation includes the use of a vehicle, the penalty is increased by up to a third. Where the violation is repeated, the fine is doubled;
  14. 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.

FAQs

1 – Do the obligations of verification, adoption of organisational measures and access to the workplace also apply in relation to selfemployed 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 the workplace also apply to owners, directors and members of administrative and control bodies (such as a board of directors)?

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 the workplace replace the precautions (social distancing, mask, pre-screening, etc) already in place in compliance with national anti-covid-19 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?

According to the favourable opinion of the Privacy Authority on the Prime Ministerial Decree of 12 October 2021, which introduced new ways of verifying the green pass in the public and private sector, the verification activity must not involve the collection of data from the person concerned in any form, except those strictly necessary, in the workplace, for the application of measures resulting from 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 identified (VerificaC19, SDK, Piattaforma NoiPa and INPS portal), which will allow the display of only the information of the possession or not of the green pass, with a prohibition on retaining the QR code of Covid-19 green certifications subject to verification, as well as to extract, consult, record or otherwise process for further purposes the information detected by reading the QR code and the information provided as a result of controls. In view of the conversion of the Decree-Law 127/2021, the Authority had sent to Parliament and the Government the report of 11 November 2021 in which he noted some problems in relation to the possibility of delivery by the employees of a copy of the green pass to the employer, with the consequent exemption from controls, for the duration of the validity of the certificate.

The provision in question was nevertheless approved by the conversion law (see point 7 above), but the issue remains delicate. In fact, given the specific purposes indicated in the provision, the legislative provision which provides for the right of the employee to give the employer a copy of the green pass does not automatically entitle the employer to process all the data contained therein, but can only be limited to the data relating to the expiry of the validity of the green pass, bearing in mind the period of validity of the legislation in question.

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

The obligations in question are regulated by article 4 bis of Law Decree 44/2021 and concern all individuals, including external ones, who carry out their work in any capacity in: hospitality and long-term care facilities; assisted healthcare residences; hospices; rehabilitation facilities; residential facilities for the elderly and other residential facilities that provide in-patient care to people who cannot be cared for in day hospitals or out-of-hospital settings; out-patient services for those following acute hospital stays or long-term stays for disabling conditions; and social assistance services (ie, health care employees).

From 10 October 2021 to 31 December 2021, all health care employees are obliged to be vaccinated against covid-19, except in the case of exemption with a 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 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 for elusive purposes, in order to allow workers without a green pass to carry out their work.

7 – Is it possible for the employer to check the possession of the green pass in advance of the time set for the worker to enter the premises?

Article 3 of DL 139/2021 provides that in the event of a request by the employer, arising from specific organisational needs to ensure the effective scheduling of work, workers are required to provide information on the possession of the green pass with a notice necessary to meet the above organisational needs.

The provision is poorly coordinated in that it would complement the general provisions concerning all private sectors, but it is included within a provision entitled ‘Urgent provisions for access to cultural, sporting and recreational activities, as well as for the organisation of public administrations and concerning 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 as to 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 control 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 Guarantor on the matter). The Government’s FAQs seem to go in this direction. We therefore recommend extreme caution in applying the provision.

8 – Can software applications available on online stores be used to verify green passes?

NO – The only app that can be used is the VerificaC19 app, released by the Ministry of Health. The Privacy Authority, with a message dated 3 November 2021, has launched an investigation into “pirated” apps, warning users against downloading unofficial apps.

INPS has made available, for all employers with more than 50 employees, the Greeenpass50+ system, which allows automated verification of possession of the green pass for access to workplaces, by querying the list of tax codes of their employees known to the Institute at the time of the request.