Decree-Law no. 127/2021 provides – also in the private sector and as of 15 October 2021 and until 31 December 2021, the current deadline for the end of the state of emergency – for the obligation of access to the workplace only for workers in possession of the COVID-19 green certification, the so-called Green Pass.
The main features of the forecasts of interest are summarised below.
Parties subject to control
From 15 October, anyone working in the private sector, except for those who are exempt from the vaccination campaign on the basis of appropriate medical certification issued according to the criteria defined in a Ministerial Circular, will be required to possess and present the Green Pass, upon request, to access to the workplaces.
The obligation will also apply to the persons who enter company premises, not only to carry out work, but also for training or voluntary purposes, including on the basis of external contracts, and in this case the control may also be carried out by the respective employers.
Controls by the Employer
The checks will be the responsibility of the employers, who by 15 October will have to define the procedures for organising the checks, notwithstanding the fact that, as of today, it is impossible to keep data such as the expiry date of the Green Pass.
The checks will have to be carried out “preferably” when entering the workplace (e.g., using the C19 Verification App) and, if necessary, “also on a sample basis“. However, spot checks could be risky for the employer, given the penalties for failure to check, if the employer could not prove that it has put in place the necessary organisation for the checks.
In addition, the employers will formally identify the persons responsible for investigating and challenging any violations.
Failure to comply with the provisions. Consequence for Employers and workers
If the employee informs us that he/she does not have a Green Pass or does not have one at the time of access to the workplace, he/she will be considered to be unjustifiably absent without any right to pay or any other remuneration or emolument, however named, until the presentation of the Green Pass and in any case no later than 31 December 2021 (the employee without a Green Pass at the time of access to the workplace will not be subject to disciplinary consequences and will retain the right to employment).
For the companies with fewer than 15 employees, after the fifth day of unjustified absence due to lack of Green Pass, the employer may suspend the employee for the duration corresponding to that of the employment contract concluded for the replacement, but for a period not exceeding ten days, renewable once, and not beyond the deadline of 31 December 2021.
A fine of between EUR 600 and EUR 1,500 is envisaged for workers who enter workplaces in breach of the Green Pass obligation (without prejudice to the disciplinary consequences in accordance with the respective sectoral regulations); a fine of between EUR 400 and EUR 1,000 is envisaged for the employers who fail to check compliance with the rules and who do not provide for verification procedures.