1. What governmental or official measures have been taken to date?
Starting from 15 October, in order to access the workplace, employees will be required to show the Green Pass. The new provisions were introduced by DL 127/2021, which amended DL 52/2021.
2. What do these measures consist of and who do they apply to?
From 15 October 2021 until 31 December 2021, the end of the state of emergency, all those who carry out, for any reason, work or training or volunteer activities in a workplace will have to show the Green Pass in order to access these workplaces.
Therefore, employees are subject to this obligation, as well as self-employed workers, administered workers or employees of contractors, etc.
3. Are there any cases of exemptions? Individuals excluded from this regulation may include subjects exempt from the vaccination campaign on the basis of appropriate certification issued according to the criteria defined by the Circular of the Ministry of Health.
4. How can the Green Pass be obtained?
The Green Pass is obtained:
- with a vaccination (and will last 12 months from the second dose);
- with a certificate of recovery (and will last six months);
- with a negative swab (if it is a molecular test it will last 72 hours, otherwise 48 hours in the case of an antigenic test).
5. What are the obligations of the employer?
By 15 October 2021, the employer must prepare a protocol for implementing the Green Pass check. Based on that protocol, the employer must verify that employees have a Green Pass.
6. How does the employer check the Green Pass?
The checks may be carried out at the entrance to the employer's offices, on a random basis or for all employees, with or without the aid of automatic systems. The staff in charge of the checks will forbid entrance to any employee without a valid Green Pass or an employee who refuses to show the pass.
Green Pass checks must be carried out every day with priority given to the checks at the entrance.
The law allows for random checks, but these should cover an appropriate number of workers, should not be discriminatory, and should be based on specific needs (e.g. avoiding queues at the entrance where it is not possible to keep a safe distance) The guidelines of 6 October 2021, in relation to the PA, stipulate that the control measures must cover at least 20% of the company's population present on a daily basis, ensuring that this control is carried out over time in a homogeneous manner with a rotation criterion, and with priority given to the midday period of the working day.
From a technical point of view, the verification of the Green Pass must be done manually with the reading of the two-dimensional barcode (QR code) by using the special app, Verification C19, on a company device.
Specific resources will be made available for private employers, allowing a daily and automated verification of the possession of the certifications. In particular, it will be possible
- the integration of the system for reading and verifying the QR code of the green certificate in physical access control systems, including those measuring attendance or body temperatures;
- for employers with more than 50 employees, both private and public, who are not members of NoiPA, the asynchronous interaction between the INPS institutional portal and the national platform-DGC.
7. What are the limits to the Green Pass check?
The verification should only concern the validity of the Green Pass at the time of the check. It should be possible to ask the person whose Green Pass is being checked for identification. It is not possible to verify on what basis the Green Pass was issued or its duration.
In addition, the employer will have to prepare notices, even brief ones, in the vicinity of the places of access, indicating as a legal basis the legal obligation of the holder, as well as updating the register of treatments with reference to the verification activity, indicating the specific security measures adopted and the privacy organisational model (Mop) to document and demonstrate the adequacy of the measures adopted for the processing activities related to the Green Pass.
8. Who actually carries out the check?
The employer will be responsible for appointing the person in charge of verification with a written appointment. More than one person should be appointed to be in charge of verification in case of absences.
9. Can the employer record the data of the persons being audited?
The employer will only be able to keep track of the number of Green Passes scanned such as through numerical reports that tell how many certifications were scanned in a given time frame.
The employer will be able to record the data of those who do not have Green Passes in order to mark unexcused absences.
10. What happens to the employee without a Green Pass? And how can the employee waiting for a Green Pass to be issued or updated prove that he or she can access to the workplace?
The workers without a Green Pass or those who refuse to show a pass will be considered as unjustified absentees without pay until the submission of a Green Pass. Until 31 December 2021, this absenteeism will be without disciplinary consequences and with the right to keep their jobs.
In addition, in the event that the employee accesses the workplace without a Green Pass, he/she will be subject to disciplinary sanctions.
In this case, the employer must then make a report to the Prefecture for the purposes of applying the administrative penalty.
In the case of employers with less than 15 employees, after the fifth day of unjustified absence, the employer may suspend the employee for the duration corresponding to that of the employment contract stipulated for the replacement, in any case for a period not exceeding ten days, renewable for one time only.
Employees waiting for a Green Pass to be issued will be able to show documents released, in paper or digital format, by public and private health care facilities, pharmacies, etc.
11. What prevails between illness and unjustified absence related to the Green Pass?
Between illness and unjustified absence related to the Green Pass, the event occurring earlier prevails.
12. Are those without a Green Pass entitled to work from home?
The Prime Ministerial Decree adopted on 12 October excludes the possibility that the employee may be assigned to remote working arrangements only because he/she does not have a Green Pass. The employer may grant it on the basis of its own needs. The guidelines of 6 October 2021 state that Smart Working cannot be used for the purpose of circumventing the Green Pass requirement.
13. Must workers on transfer have a Green Pass? Who will check this?
Checks must be carried out every time the worker on transfer enters a place of work. The worker on transfer cannot avoid going on a trip on the grounds that he/she does not have a Green Pass since he/she would incur the same consequences described above.
14. Who checks the Green Passes of staff leasing employees and contractors?
The Green Pass must be controlled by both the employer and the user/client.
15. During an unjustified absence does the employee accrue contributions and deferred remuneration (e.g. vacations days, etc.)?
During the unjustified absence, employees do not accrue contributions or entitlement to deferred compensation (e.g. holiday entitlement, etc.).
16. Are there any exceptions?
For companies with less than 15 employees, after the fifth day of unjustified absence, the employer may suspend the worker for the duration corresponding to that of the contract for his replacement and in any case for a maximum period of ten days, renewable once and not beyond 31 December 2021.
17. What happens if the Green Pass expires during working hours?
A The Green Pass obligation is provided "for the purpose of [gaining] access" to workplaces. A strict and systematic interpretation of the legislative provision would require the Green Pass to be valid for the entire working day.
This would also seem to be confirmed by the guidelines issued on 6 October 2021 in relation to the PA, according to which possession of the certification and its display are conditions that must be met at the time of access on duty or at a later time in the event of spot checks. A less restrictive reading would suggest that the Green Pass must be valid at the time of access to the company, but need not remain valid during the same day.
In the absence of further clarification from the legislator, in our opinion it is prudent to give guidance to employees on the possibility of entering the company with a Green Pass valid for working hours.
18. What penalties are provided for by the Law?
If an employer fails to check the Green Pass or does not take the organisational measures required by law, this employer is liable to receive an administrative penalty of between EUR 400 and EUR 1,000, which will be doubled in the event of a repeat offence.
The employer may then be held liable pursuant to art. 2087 of the Italian Civil Code if infections occur in the company due to a failure to control the disease.
19. What are the penalties for employees who enter the company without a Green Pass?
If employees without a Green Pass enter the workplace, they are liable to an administrative measure of between EUR 600 and EUR 1,500. This sanction does not exclude the applicability of further disciplinary measures.
20. Does the Green Pass obligation make security measures in the company unnecessary?
No. The Green Pass does not remove the obligation to comply with other safety measures or protocols (e.g. social distancing, mask requirement).
21. What should the employer actually do if the employee does not have a Green Pass?
If the employer discovers that a Green Pass worker is not present, the worker must be removed. Our suggestion is to prepare a communication, to be sent to the removed employee, stating that:
- checks carried out on a certain date, either at the point of entry or at the workplace, show that the employee is not in possession of a valid Green Pass;
- he or she should be considered legally absent until such time as he or she is able to show a green pass;
- he/she is removed from the workplace;
- he/she must communicate the date of his/her return to work.
22. Will companies that carry out spot checks on their staff incur penalties if a check by the authorities uncovers workers without Green Passes?
Theoretically, no, provided that the controls are carried out in accordance with appropriate organisational models as set out in Decree Law 127/2021.
The best way to reduce any risk is to control the entire company population on a daily basis.
23. Is it possible for the employer to check the possession of the Green Pass in advance of the employee's expected access to the site?
In cases of specific organisational needs (e.g. for shift workers or employees performing particular tasks), employees are required to give notice of non-possession of the Green Pass with sufficient notice so that the employer is able to meet those needs.
24. Are only vaccinated employees able to be admitted to the company?
The law provides for Green Passes to be obtained by means other than a vaccination. If only those who have been vaccinated are allowed access, employees can claim discrimination and ask a judge to order work to be conducted without attendance.