On September 21, 2022, Law No. 142/2022 was published in the Official Gazette, converting with amendments Decree-Law No. 115/2022 (so-called “Aid-bis Decree”) and introducing significant novelties affecting labor relations, and in particular the use of the smart working regime.
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- Reactivation of simplified smart working
First of all, it is worth mentioning that smart working is a mode of work that normally requires reaching an agreement and, thus, the signing of an individual agreement (according to the provisions contained in Law No. 81/2017) between the employee and the employer.
With the aim of increasing competitiveness and enabling easier reconciliation of work-life time, smart working is a method of performing work that can provide for forms of work organization through phases, cycles and objectives, without any constraints regarding a precise time or place of work, and with the possibility of using IT tools to carry out the work activity.
Specifically, work is carried out in a “hybrid” mode in that it is to be performed, partly on company premises, partly outside the same, without a fixed location and with hourly flexibility, arising from the law and the collective agreement.
Last August 31, the extension to the exemption provided for access to “simplified” smart working expired, which had made it possible for the employer to unilaterally adopt a mode of work that normally sees the agreement concluded between the parties as one of its main features.
Since September 1, 2022, therefore, in the absence of any regulatory intervention on the point, companies have been able to resort to the smart working regime only if they have previously negotiated and signed, with each of the workers concerned, an individual agreement that was in line with the provisions of Law No. 81/2017.
Article 25 bis of Decree Law No. 115/2022, as converted by Law No. 142/2022, effectively reactivated until December 31, 2022 the deadline that previously allowed employersin the private sector to use smart working even in the absence of individual agreements.
Therefore, until the new date – unless further extended – private employers will be able to adopt the agile working regime with reference to any employee-employer relationship, even if no individual working agreement has been signed.
- Smart working for fragile and at-risk workers
Article 23 bis of Decree-Law No. 115/2022, as converted by Law No. 142/2022, extends to December 31 the right to smart working for fragile workers, both public and private employees, who until that date can therefore continue to work in smart working mode.
Specifically, this right is granted to frail workers, including through:
- the assignment to a different task included in the same category or area of classification, as defined by current collective agreements;
- the carrying out of specific professional training activities, including remotely.
The same extension of the possibility of using agile work is also provided for employees, public and private, who are considered more exposed to the risk of contagion, due to age, condition from immunodepression and a previous infection with Covid-19, or other pathologies that determine particular situations of fragility of the worker.
- Smart working for workers – parents with children under 14
Article 23 bis of Decree Law No. 115/2022, as converted by Law No. 142/2022, provides that the right to smart working until December 31, 2022, is also granted to employees in the private sector who are parents of at least one child under 14 years of age
For the smart working mode to be used, however, the following requirements must be met:
- the other parent must also work or not be a “beneficiary of income support instruments in the event of suspension or termination of employment” (these are measures that the legal system provides to support the worker during the course of the employment relationship or at the time of termination, such as the redundancy fund and unemployment benefits);
- such working arrangements are compatible with the characteristics of the work performance.
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Notwithstanding the reactivation of simplified smart working, we believe it is advisable in any case to sign individual ad hoc agreements with each individual worker to regulate the working relationship in the event that the company intends to use this working mode.
Finally, it is also advisable to consider the adoption of regulations governing the use of work tools, this also with reference to the possibility that it may be necessary to access them in the event of the activation of disciplinary proceedings.