On November 20, 2021 Law no. 165/2021 was published in the Official Gazette, converting Law Decree no. 127/2021, which made important changes regarding the obligation to possess and display Green Passes in order to access the workplace.
Delivery of the Green Pass
The most discussed of the innovations with respect to the previous legislation is the following: “workers can request to deliver to their employer a copy of their Green Pass. The workers who deliver the aforementioned certification, for the entire duration of its validity, are exempt from checks by their respective employers“.
The above, without prejudice to the prohibition for the employer to request the worker a copy of the Covid-19 Green Certification.
On this point, the Privacy Guarantor on November 11 sent a report to the Government and Parliament, raising some concerns about the practical implementation of this provision in compliance with the privacy legislation since already in the past the Guarantor had supported the prohibition for the employer to keep a copy of the Green Pass.
If this were not enough, the Guarantor points out that the employer, as owner of the data, would have to keep a large amount of data of a health nature having, therefore, to adopt technical and organizational measures appropriate to the degree of risk involved in the treatment, with a not inconsiderable increase in costs (also for the public finance, relatively to the public sector).
Control for temporary workers
The conversion law under examination exempts the employer from the Green Pass control of its temporary workers. This control is, therefore, the responsibility of the “user” company. However, the employer (i.e. the temporary work agency), is responsible for informing the temporary workers of the relevant provisions in force.
Expiry of the Green Pass during the working hour
In confirmation of what has already been stated in a FAQ published on the Ministry of Employment website, the expiry of the Green Pass during the working hours does not entail the application of the sanctions provided for in the event of failure to possess the Green Pass. Therefore, if the Green Pass expires during working hour, the worker may continue to work, provided that only for the time necessary to complete his work shift.
Replacement of workers without a Green Pass in companies with fewer than 15 employees
As is known, companies that employ fewer than 15 employees – after the fifth day of unjustified absence of an employee without a Green Pass – may suspend the worker for the duration corresponding to that of the employment contract stipulated for his replacement, for a period in any case not exceeding 10 working days, renewable until December 31, 2021, without disciplinary consequences and with the right to job preservation. Unlike what was previously envisaged, it is now possible to renew the employment contract entered into to replace the suspended worker more than once, provided that this is done by December 31, 2021 and that the maximum duration of each renewal is 10 working days.
We remain available for any further information or clarification deemed appropriate in relation to the management of the Green Pass control procedures by employers.