EXTENSION OF SIMPLIFIED SMART WORKING COMMUNICATION
Law no. 21 of 26 February 2021 was published in the Official Gazette no. 51/2021, in force from 2 March 2021, converting, with amendments, Law Decree no. 183/2020, the so-called “Decreto Milleproroghe 2021”.
The provisions include the extension until the date of termination of the COVID-19 epidemiological state of emergency and, in any case, no later than 30 April 2021 of the deadline for availing of simplified COVID-19 smart working (article 90, paragraphs 3 and 4, Decree-Law no. 34/2020), by means of a simple communication to the Ministry of Health. 34/2020), by simply notifying the Ministry of Labour, electronically, of the names of the workers and the date of termination of the agile work service, using the documentation made available on the Ministry’s website, even in the absence of individual agreements and with obligations to provide information on the general and specific risks associated with the particular method of carrying out the work relationship to be fulfilled electronically, also using the documentation made available on the INAIL website.
LEAVE FOR PARENTS WITH CHILDREN IN QUARANTINE OR DISTANCE LEARNING
On 13 March 2021, Law Decree 30/2021 came into force, introducing a number of urgent measures to deal with the spread of COVID-19 and support measures for workers with minor children in distance learning or quarantine.
With regard to the support measures for families, the Decree provides that the parent of a cohabiting child under the age of 16, who is an employee, may work in agile mode for a period corresponding in whole or in part to the duration of the suspension of teaching activities in the presence of the child, to the duration of the child’s COVID-19 Sars infection, as well as to the duration of the child’s quarantine ordered by the Department of Prevention of the competent local health authority following contact wherever it occurred.
In the only cases in which the work cannot be carried out in agile mode, the employed parent of a cohabiting child under 14 years of age, alternating with the other parent, may abstain from work for a period corresponding in whole or in part to the duration of the suspension of teaching activities in the presence of the child, the duration of the child’s COVID-19 infection, and the duration of the child’s quarantine. The benefit is also granted to parents of children with disabilities in a situation of ascertained seriousness enrolled in schools of all levels for which the suspension of teaching activities in the presence of the child has been ordered or hosted in day care centres for which the closure of the centre has been ordered.
For the periods of abstention taken, an indemnity equal to 50% of the salary calculated according to the rules provided for the economic treatment of absences in case of maternity leave is paid instead of the salary.
In the case of children between 14 and 16 years of age, one of the parents, alternatively to the other, has the right, if the conditions described are met, to abstain from work without payment of salary or allowance or recognition of figurative contributions, with prohibition of dismissal and right to keep the job.
EXTENSION AND ENLARGEMENT OF COMPULSORY LEAVE FOR WORKING FATHERS
The Inps, with circular no. 42/2021, has issued the operating instructions relating to the extension and expansion of the compulsory leave for employed fathers and to the extension of the optional leave under Article 4, paragraph 24, letter a), Law 92/2012.
In fact, the Budget Law 2021 has established that the provisions relating to compulsory leave for employed fathers – introduced on an experimental basis by Law 92/2012 – also apply to births and adoptions/fostering in the year 2021 (1 January-31 December).
In addition, the duration of compulsory leave has been increased to 10 days for the year 2021, to be taken, even if not continuously, within five months of the child’s birth or entry into a family or Italy (in the case of national or international adoption/fostering, respectively).
Article 1(25) of Law No. 178/2020 also amended Article 4(24)(a) of Law No. 92/2012, providing for and extending the protection of compulsory and optional leave for fathers even in the event of the perinatal death of a child.
It remains that, for births and adoptions/fostering in the year 2020, employed fathers are entitled to only 7 days of compulsory leave, even if falling in the first months of the year 2021 (see Inps message no. 679/2020).
With regard to the submission of the application, reference is made to what has already been stated in Inps Circular no. 40/2013: therefore, only those workers for whom the payment of benefits is made directly by Inps are required to submit an application to the Institute, whereas, if the benefits are paid in advance by the employer, workers must notify their employer in writing of the use of the leave in question, without having to submit an application to the Institute.
In the latter case, in fact, the employer communicates to Inps the days of leave taken, through the UniEmens flow, according to the provisions provided by Inps message no. 6499/2013.
The possibility for employed fathers to take an additional day of optional leave has been extended for the year 2021, subject to agreement with the mother and in her place, in relation to the period of compulsory abstention due to the latter.
For the operational procedures for the use of the optional day of leave, please refer to the instructions provided in the Inps Circular no. 40/2013.
ACAUSALITY ALSO FOR FIXED-TERM CONTRACT WORK
The Ministry of Labour, with answer to interpello no. 2/2021, intervened to clarify whether the provision introduced by Decree-Law 104/2020, which allows, by way of derogation from Article 21, Legislative Decree 81/2015, to extend or renew a fixed-term employment relationship even in the absence of the reasons set out in Article 19, paragraph 1, Legislative Decree 81/2015, is also applicable to fixed-term administration.
The drafters of the answer to the interpellation recall that work administration is the contract by which an authorised administration agency makes available to a user one or more of its employees, who, for the entire duration of the mission, carry out their activities in the interest of and under the direction and control of the user.
The employer remains, therefore, the administrator, who, with a view to sending the workers to the user, may employ the workers either on a permanent or fixed-term basis. In the latter case, the employment relationship between the staff leasing agency and the worker is subject to the rules governing fixed-term contracts, with the sole exception of the following provisions:
- Article 21(2), which provides for a minimum interval between 2 successive fixed-term contracts (of 10 or 20 days, depending on the duration of the first contract);
- Article 23, which sets the maximum percentage of workers who may be employed under fixed-term contracts at 20% of those employed under permanent contracts; and
- Article 24, which gives fixed-term workers the right of precedence in permanent recruitment.
On the other hand, the other provisions of Article 21 are not included among the exclusions, including paragraph 01 – introduced by Decree-Law 87/2018 (Dignity Decree) – which recalls the obligation of the reasons referred to in Article 19, paragraph 1, for any hypothesis of renewal of a fixed-term contract, as well as for extensions exceeding 12 months.
In the case of administration, the reasons must be referred to the user; for the extension, it must be remembered that the term initially affixed to the employment contract stipulated by the administration agency can always be extended, with the consent of the worker and by written deed, in the cases and for the duration provided for by the collective agreement applied by the administrator.
In this regard, it should be noted that Article 22, Ccnl Agenzie di somministrazione, signed on 15 October 2019, provided for a maximum of:
- 6 extensions within the legal limit of 24 months;
- 8 extensions in the event that the Ccnl applied by the user extends the maximum duration of fixed-term contracts beyond 24 months.
If the extension itself exceeds 12 months, the presence of the reasons is required.
It is noted that the derogation introduced by Article 8, paragraph 1, Decree-Law No. 104/2020, concerns precisely Article 21, paragraph 01, Legislative Decree No. 81/2015, which is normally applicable also to the staff leasing contract, whose renewal and extension exceeding 12 months are, therefore, ordinarily subject to the presence of the reasons, referred to the user.
|In light of the above, the Ministry’s experts concluded that the exemption introduced by the emergency legislation is also applicable to fixed-term staff leasing contracts, which, exceptionally, may be renewed or extended beyond 12 months even in the absence of reasons, subject to compliance with the other limits provided for by the Law. It is also reiterated that the postponement to 31 March 2021 of the final deadline for the exercise of this option of renewal or extension without a reason does not recognise a new possibility of renewal or extension, where the same has already been previously exercised. This option can therefore be used only once.|
Lastly, it is pointed out that in the event that the staff leasing contract between the staff leasing agency and the user is for a fixed-term period, the user may employ on a mission, for periods of more than 24 months, including non-continuous periods, the same staff leasing worker, for whom the staff leasing agency has notified the user that he has been hired for an indefinite term, without this resulting in the user establishing an employment relationship with the staff leasing worker for an indefinite term. The provision is effective until 31 December 2021.
MEAL VOUCHERS ALSO EXEMPT FOR SMART WORKING
The Tuir provides that the employee’s income is not formed by “the provision of food by the employer as well as those in canteens organized directly by the employer or managed by third parties, the services in lieu of meals up to a total daily amount of € 4, increased to € 8 if they are made in electronic form; allowances in lieu of meals paid to workers on construction sites, other temporary work structures or production units located in areas where there are no catering facilities or services, up to a total daily amount of €5.29“. The rule therefore distinguishes three hypotheses of supply of food:
(a) the operation, including through a third party, of a canteen by the employer
(b) the provision of services in lieu of company canteens (e.g. meal vouchers)
(c) the payment of a sum in lieu of canteen allowance.
With the exception of hypothesis a), which excludes the emergence of an employee’s income, in the other modes of food administration, on the other hand, the income relevance of the same is provided for, albeit to a different extent.
According to Article 4, Mise Decree 122/2017, the meal voucher may be paid by the employer in favour of the employees hired, whether full-time or part-time, as well as if the working time does not include a break for lunch.
The tax legislation does not provide for a definition of meal vouchers, but merely provides that they do not count towards income within the limits described.
In its answer to question no. 123/E/2021, the Agenzia delle Entrate, in the absence of provisions limiting the payment by the employer of meal vouchers in favour of its employees, considers that for such services in lieu of the canteen service the partial taxability regime provided by the Tuir is applicable, regardless of the articulation of working time and the way of carrying out the work activity.
Therefore, even for smart working employees, the employer is not required to make the withholding tax on the value of meal vouchers up to 4 euros, if paper, or 8 euros, if electronic.
TAX BENEFIT FOR REPATRIATED WORKERS
The Agenzia delle Entrate, with provision no. 60353/2021, has provided the operational instructions for the use of the tax benefit provided for by Article 5, paragraph 1, letter c), D.L. 34/2019 (additional 5 years of relief in the presence of certain conditions), for persons who have been registered with Aire or who are citizens of EU Member States, who have already transferred their residence before 30 April 2019 and who, as at 31 December 2019, are beneficiaries of the regime provided for by Article 16, Legislative Decree 147/2015.
The option is exercised by means of a single payment of:
- an amount equal to 10% of the income from employment and self-employment produced in Italy, which is the subject of the relief referred to in Article 16, Legislative Decree. 147/2015, relating to the tax period preceding the one in which the option is exercised, if the person at the time of exercising the option has at least one minor child, including in pre-adoptive foster care, or has become the owner of at least one residential real estate unit in Italy, subsequent to the transfer to Italy or in the 12 months preceding the transfer, or becomes the owner within 18 months from the date on which the payment is made, failing which the additional benefit enjoyed will be returned without the application of sanctions. The real estate unit can be purchased directly by the worker or by his spouse, cohabiting partner or children, even in co-ownership;
- an amount equal to 5% of the income from employment and self-employment produced in Italy, subject to the relief provided for by Article 16, Legislative Decree. 147/2015, relating to the tax period preceding the one in which the option is exercised, if the person, at the time of exercising the option, has at least three minor children, including those in pre-adoptive foster care, and becomes or has become the owner of at least one residential real estate unit in Italy, subsequent to the transfer to Italy or in the 12 months preceding the transfer, or becomes the owner within 18 months from the date on which the payment is made, failing which the additional benefit enjoyed will be returned without the application of sanctions. The real estate unit can be purchased directly by the worker or by his spouse, cohabiting partner or children, even in co-ownership.
The above amount must be paid using the F24 payment form, without the possibility of using the set-off provided for in Article 17, Legislative Decree 241/1997, by 30 June of the year following the year in which the first period of use of the benefit referred to in Article 16, Legislative Decree 147/2015 ends.
For the purposes of applying the benefits, employees shall submit a written request to their employer by 30 June of the year following the year in which the first period of eligibility ends.
The withholding agent will withhold taxes, at the percentages provided for by the law, on the taxable amounts referred to in Article 51, Tuir, paid from the pay period following the receipt of the request.
At the end of the year or at the termination of the employment relationship, the withholding agents will have to make the reconciliation between the withholdings made and the tax due on the total amount of the emoluments paid starting from 1 January of the year of reference.
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