L.D. 17th MARCH 2020, N. 18 – NEW SOCIAL SHOCK ABSORBERS AND DISCIPLINES OF THE EMPLOYMENT RELATIONSHIP
SOCIAL SHOCK ABSORBERS, WHO CAN ASK THEM AND HOW
Companies can reduce or suspend production activity and, consequently, work activity.
The Law Decree, consisting of 127 articles, dedicates the articles 19-22 to the “Extension of special measures regarding social safety nets for the whole national territory”.
Ordinary wage supplementary treatment
For companies that already benefit from wage subsidies, it is possible to use a new cause called “COVID-19 emergency”, linked to “events related to the epidemiological emergency” that lead to the suspension or reduction of work during the year 2020.
In particular, the recurrence of the new reason gives the right to the ordinary salary integration treatment for periods starting from 23rd February 2020 for a maximum duration of nine weeks and in any case within the month of August 2020.
The aforementioned events are sufficient to mature the right to wage supplementation without the need for normal reasons (transitory events and not attributable to the company and employees; temporary market situations).
The Law Decree refers to the “ordinary wage integration treatment”. This suggests that even the treatment linked to the new reason is equal to 80% of the overall remuneration that would have been due to the worker for the hours not worked, ranging between zero hours and the limit of the contractual time.
The reference to “ordinary wage integration treatment” also suggests that it follows the fictitious contribution in favour of workers according to the general rules.
Employees at the date of February 23rd, 2020, can benefit from the employer who submits the related application.
Workers do not need to have at least ninety days of effective work at the time of requesting treatment for the new reas
on (ninety days represent the condition normally required for the use of wage subsidies).
Employers, interested in activating the use of the treatment for the new reason, are exempted from the union information and consultation obligations normally applicable according to the rules of the ordinary treatment of wage integration.
However, the employers themselves must make a prior notification and a joint examination, which can also be done electronically within the following three days.
The Decree does not indicate the subjects to whom the communication should be addressed and with whom to proceed with the joint examination. However, it can be considered that the RSU or, in the absence, the trade union representatives of the company as well as the territorial divisions of the trade union associations which are comparatively more representative at a national level, are to be involved.
The request for the causal “COVID-19 emergency” must, in any case, be submitted, as usual electronically to INPS, until the end of the fourth month after that in which the suspension or reduction of work began.
It seems that the wage integration treatment may have retroactive effectiveness, also affecting workers whose activity after 23rd February 2020 has already been suspended or reduced.
The previous use of other contractual institutions (par, rol, bank hours, holidays), which allow the reduction/suspension of working hours, does not prevent the evaluation of the use of ordinary treatment for the new reason.
The activation of the causal “COVID-19 emergency” may also derive from overcoming the production/organizational conditions that initially motivated the use of smart working (on these aspects it is useful to consider the “Shared protocol for the regulation of measures to contrast and contain the spread of the Covid-19 virus in the workplace” of 14th March 2020).
Concerning this new cause, the employer does not have to pay the additional contribution.
The periods of wage integration for the new reason are not relevant for the maximum duration of the wage supplementation treatment (usually set in twenty-four months in the so-called mobile five-year period or thirty months always in the mobile five-year period for construction companies and sectors excavation and/or processing of stone materials).
The salary integration periods for the new reason are not relevant for the specific time limits that normally apply to the ordinary salary integration treatment (which, among other things, art.12 of Legislative Decree no. 148/2015 fixes in thirteen consecutive weeks, extendable quarterly up to a maximum of fifty-two weeks).
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This means that it should be possible to take advantage of the layoff for the new reason even if the normally applicable duration limits have been exhausted. |
Companies included in the scope of the extraordinary layoff fund and not in that of the ordinary layoff fund
The situation of these companies is not expressly considered by the Law Decree.
It remains to be clarified whether these companies can benefit from the ordinary treatment for the causal “COVID-19 emergency” or the layoff fund provided for by art. 22 DL n. 18/2020.
Question to be resolved having in mind that these companies, on the one hand, are extraneous to the cash register ordinary integration and, on the other hand, still participate in the system of protection in constant employment as they are recipients of the regulations on extraordinary wage integration.
Equally relevant is the fact that the treatment for the new reason has public and non-contributory funding.
Ordinary checks from the Funds
The ordinary allowances of the bilateral Solidarity Funds and of the Wage Integration Fund (FIS) – consisting of an economic performance linked to the reduction or suspension of working time and of an amount at least equal to the wage supplement (80% of the total remuneration) – can be requested for the causal “COVID-19 emergency”.
The recurrence of the new reason gives the right to the disbursement of the ordinary check for periods starting from 23 February 2020 for a maximum duration of nine weeks and in any case within the month of August 2020.
The ordinary check can be requested by employers who employ on average more than five employees (including apprentices).
Given the time limits regarding the duration of the ordinary checks paid by the Funds, it is expressly provided that the checks, used in implementation of the causal “COVID-19 emergency”, are completely irrelevant and, therefore, do not contribute to limiting the usability of the same type of service according to normal rules.
Limited to the year 2020, the “company ceiling” (“roof” which, according to the rule derogated from the Law Decree, obliges to limit the performance of the FIS to an extent not exceeding ten times the amount of ordinary contributions due by each employer).
The application is to be submitted to INPS electronically according to the rules set for the Funds.
Concerning the new reason, the employer is released from the obligation to pay the additional contribution.
If the solidarity check is being paid by the FIS (check deriving from a union agreement which provides for the reduction of working hours to avoid or reduce surplus staff), the employer concerned can request the recognition of the ordinary check, equally payable for a period not exceeding nine weeks and with the advantages illustrated above.
At the request of employers, ordinary checks can be paid directly by INPS, without the same employers having the burden of anticipating them.
Public financing of ordinary treatments and ordinary checks with causal of “COVID- 19 emergency “
The aforementioned services are recognized in the maximum spending limit of 1,347.2 million euros for the year 2020. INPS monitors the spending limit and, if it emerges that the spending limit has also been reached prospectively, it does not take more consideration further questions.
Alternative bilateral solidarity funds
These Funds may be requested to pay the ordinary check in the same way as described above ( work suspended or reduced due to events related to the causal “COVID-19 emergency” for periods starting from 23 February 2020 for a maximum duration of nine weeks and in any case by August 2020 ).
The costs consequent to the disbursement of the ordinary allowance are charged to the State budget within the limit of 80 million euros for the year 2020, which are transferred to the Alternative Funds by Decree of the Minister of Labor in consultation with the Minister of Economy.
Extraordinary redundancy fund and ordinary treatment for the causal “COVID-19 emergency”
The companies, which have extraordinary wage integration treatments underway for any of the expected causes (reorganization, company crisis, solidarity contract) as of February 23rd, 2020, can request the ordinary wage integration treatment for the causal “COVID-19 emergency”.
This treatment has a maximum limit of nine weeks and is also payable for part-time workers benefiting from extraordinary wage subsidies.
The ordinary treatment suspends and replaces the extraordinary wage supplement treatment already in progress.
The granting of ordinary treatment (CIGO) is subject to the suspension of the effects of the extraordinary authorization lay-off (CISG) previously authorized; it also suspends and replaces the solidarity check.
The aforementioned ordinary treatment is not calculated within the maximum overall duration (twenty-four months in the mobile five-year period or thirty months in the mobile five-year period for construction companies and in the sectors of excavation and / or processing of stone materials).
The period of use of the ordinary treatment for the new reason :
- does not contribute to exhausting the specific limits provided for ordinary wage supplementation
- In relation to the ordinary treatment, the payment of the additional contribution by the company is not due
| The aforementioned benefit is recognized in the maximum spending limit of 338.2 million euros for the year 2020. INPS monitors this limit and, if it emerges that the expenditure limit has also been reached prospectively, it no longer considers further applications. |
Extraordinary layoff fund according to normal motives
For companies interested in extraordinary payroll integration treatment, an exception to the “procedural deadlines” concerning the trade union consultation phase and the procedure for granting extraordinary treatment is provided for on a transitional basis, in consideration of the limited operations resulting from the emergency situation.
Layoff fund in derogation
Regarding private sector employers, including agriculture, fisheries and third sector employers including civilly recognized religious bodies, “for which the protections provided for by current provisions on suspension or reduction of working hours do not apply, in permanent employment relationship “(layoffs and Funds), layoffs may be granted as an exception for the suspension or reduction of working hours as a consequence of the epidemiological emergency from COVID-19.
For the use of the aforementioned fund, minimum employment levels are not required.
The request for the layoff fund is to be presented to the Regions and the autonomous Provinces that instruct them according to the chronological order of presentation.
The redundancy treatment is granted by decree by the Regions and by the autonomous Provinces, subject to agreement with the comparatively more representative organizations at national level (the wording of the Law Decree is not clear as it refers to the “comparatively more representative union organizations at national level for employers “).
The agreement is not required for employers who employ up to five employees.
In particular, the Regions and the autonomous Provinces provide decrees to be transmitted to INPS electronically within 48 hours of adoption, the effectiveness of which is in any case subordinate to compliance with the spending limits.
The regions and autonomous provinces also send the list of benefit recipients to the INPS, which provides for the provision of services after verifying compliance with the spending limits.
Workers already in force on February 23rd, 2020, can benefit from this form of income guarantee.
It is not required that these workers have at least ninety days of effective work on the date of submission of the application for the wage supplement treatment in derogation.
The treatment lasts a maximum of nine weeks and does not require payment of the additional contribution.
In the absence of different directives, it must be considered that the indemnity is equal to 80% of the salary, including any additional monthly accruals, which the employee would have received for the hours not worked between zero hours and the limit of contractual time, however no more than 40 hours per week.
For workers, the notional contribution and related accessory charges are recognized.
For workers in the agricultural sector, the hours of reduction or suspension of work are equated to work to calculate agricultural unemployment benefits.
3,293.2 million euros are dedicated to financing this integration fund for the year 2020, which also constitutes the spending limit gradually monitored by INPS.
Supplementary layoff fund for Lombardy, Veneto and Emilia-Romagna, and for the municipalities identified in Annex 1 of the Prime Minister’s Decree of 1st March 2020
Employers of the private sector, including agriculture, with production units located in Lombardy, Veneto and Emilia-Romagna and in the Municipalities identified in Annex 1 of the Prime Minister’s Decree of 1st March 2020, who do not have a registered office or production or operating unit in the said Regions and Municipalities, limited to workers residing or domiciled in the aforementioned Regions and Municipalities, for which the protections provided for by the current provisions on suspension or reduction of hours (layoffs and Funds) do not apply, may continue to apply for the wage supplements in derogation provided for and regulated by articles. 15 and 17 D.L. 2 March 2020, n. 9, until the allocated economic resources are exhausted.
TERMS VARIOUS INCOME SUPPORT MEASURES
THEY ARE EXTENDED BY 60 DAYS:
- the deadlines for applying for agricultural unemployment, regarding the year 2019, for fixed-term and permanent workers or equivalent figures, it is extended to the 1st June 2020;
- the terms for submitting NASpI and DIS-COLL applications;
- the deadlines for applying for the incentive to self-entrepreneurship by activity self-employment or sole proprietorship.
THEY ARE SUSPENDED:
- the terms of forfeiture and a prescription for social security, welfare and services insurance policies provided by INPS and INAIL
- the terms for the payment of social security and welfare contributions and premiums for compulsory insurance payable by domestic employers between 23rd February 2020 and 31st May 2020 (to be paid by 10 June 2020, without application of penalties and interest)
- The limitation periods are suspended until 30th June 2020
LEAVE AND INDEMNITY
Special leave
As of March 5, 2020 and limited to the current year, parents-employees in the private sector with children aged 12 and under can receive “special leave”, for a continuous or split period not exceeding 15 days, with consequent payment of an indemnity equal to 50% of the remuneration (to be calculated according to the methods defined by the provision) and with figurative coverage of the contribution.
A substantially identical “special leave” (in terms of application conditions and maximum duration, except for different methods of quantifying the amount) is also provided for self-employed workers (registered exclusively to the Separate Management or, in any case, to the INPS).
The use of the “special leave” in question is recognized to only one of the parents per family for a total of 15 days, provided that the other parent is not unemployed, not a worker or a beneficiary of income support tools.
All of the above also applies to foster parents.
Conversion of parental leave into special leave
The periods of parental leave eventually enjoyed by employees from March 5, 2020 are automatically converted and must be treated as “special leave” referred to in the previous paragraph, until exhaustion.
Non-compensated leave
Parents (also foster parents) workers-employees of the private sector with children aged between 12 and 16 have the right to abstain from work for the entire period of suspension of activities in schools, without payment of allowances or recognition of figurative contributions, with dismissal ban and right to keep the job.
Such uncompensated leave shall be granted on the condition that the other parent is a worker and is not beneficiary of income support instruments.
Bonus baby-sitting
As an alternative to “special leave”, for subordinate and self-employed workers (registered or not with INPS) there is the possibility of obtaining a bonus for the purchase of baby-sitting services up to a maximum total limit of € 600,00 , to be used for a continuous or split period of 15 days. This bonus is paid through the so-called family booklet.
How to submit applications
The procedures for accessing the “special leave” allowance and the “baby-sitting bonus” are established by INPS , indicating, at the time of the application itself, the service it intends to use, contextually indicating the number of days of indemnity or the amount of the bonus you intend to use . The social security institution is authorized to reject applications in the event of exceeding the spending limit indicated in the provision , equal to 1,261.1 million Euros .
DISEASE TREATMENT
Limited to private-sector workers, the new provision equates the period spent in quarantine or fiduciary domicile with active surveillance due to COVID-19 to the ordinary “illness” for economic treatment, however without relevance for the period of conduct. Notwithstanding the current provisions, the underlying charges (normally borne by the employer) are charged to the State within a maximum spending limit.
INDEMNITY FOR INDEPENDENT AND PROFESSIONAL WORKERS
In favor of freelancers with a VAT number and coordinated and continuous collaborators enrolled in the Separate Management, as well as self-employed workers enrolled in the special management of the Aug, (provided they are not pensioners) a one-time indemnity of € 600 is attributed for the month of March 2020.
It is intended for:
- freelancers with VAT registration as of February 23, 2020, registered in the separate management;
- freelancers with VAT registration as of 23 February 2020, enrolled in general insurance compulsory;
- coordinated and continuous collaborators;
- seasonal workers in tourism and spas, not in employment or of pension;
- fixed-term agricultural workers who carried out at least 50 in 2019 days of effective agricultural activity;
- workers enrolled in the pension fund Workers of the show, not employed, with at least 30 daily contributions paid in 2019, income not exceeding Euro 50,000, not holders or pension;
They are excluded the free professionals registered in forms of compulsory social security (such as lawyers, architects, engineers).
The allowance in question does not contribute to the formation of income and is paid by INPS up to the limit of the expenditure limit indicated in the provision.
ADDITIONAL BENEFITS
Additional one-off allowances are provided for seasonal tourism and spa workers, as well as for workers in the agricultural and entertainment sector.
AGILE WORK
As for the company and the workplace:
- Encourage sanitation of the workplace
- Suspend the activity in company departments not necessary for company production possibly in agreement with the trade unions
As for workers:
AVOID circulating them outside their home or workplace:
- using agile work (smart working; workers suffering from serious and proven pathologies have priority in being able to do agile work);
- canceling unnecessary transfers (no transfers or transfers);
- canceling meetings that are not necessary (no gatherings).
Private sector workers affected by serious and proven pathologies, for which a reduced working capacity remains, priority is given in the acceptance of requests for the performance of work in agile work mode.
Until the date of April 30, 2020, employees with disabilities in terms of Article 3, paragraph 3, DL . n. 104/1992 or who have a person with the same disability in their family unit have the right to carry out work in an agile way (provided that it is compatible with the characteristics of the service).
UNTIL 31 JULY 2020 EMPLOYERS WILL BE ABLE TO USE SMART WORKING:
- for any subordinate employment relationship
- even without agreement with the worker
PROVIDED THAT:
- appropriate communication is sent to the worker;
- a self-declaration is sent to notify the activation of the smart working for emergency reasons;
- be sent electronically the information on security ;
HOLIDAYS AND PERMITS
If the employee cannot work from home, it is possible to put him on vacation or leave, but first, it would be better to check whether it is possible to take leave and leave accrued until December 31st, 2019.
In the event of absence of holidays or residual leave:
- it would be advisable to agree with workers or trade unions the use of holidays and permits which will mature in 2020;
- specific situations must be verified and the possibility of benefiting from other leave must be assessed ( for example, according to Law 104/92)
ADDITIONAL MONTHLY PERMITS EX L.N. 104/1992
There is the possibility of increasing – by a further twelve – the number of days of paid monthly leave according to Law no. 104/1992 covered by notional contributions, limited to each of the months of March and April 2020.
PROVISIONS RELATED TO DISMISSALS
From the date of entry into force of the provision ( 17 March 2020 ), for 60 days, the employer cannot withdraw from the individual or collective agreement for a justified objective reason according to art. 3 L. n. 604/1966, regardless of the number of employees employed.
For the same period, the launch of procedures for collective dismissal is precluded and those started after 23 February 2020 are suspended.
LDP stay at your disposals for any further clarifications.
De Carlo Arianna – adecarlo@ldp-payroll.com
Head of Payroll Department