DECREE-LAW 30/2021 CONVERTED INTO LAW
Law no. 61/2021 was published in the Official Gazette no. 112/2021, converting, with amendments, Law Decree no. 30/2021, containing urgent measures to cope with the spread of COVID-19 and support measures for workers with children doing distance learning or in quarantine. In particular, the law contains provisions on agile work, leave for parents with children doing distance learning or in quarantine and the baby-sitting bonus. The same Official Gazette also contains the text of Law Decree 30/2021 coordinated with Law 61/2021.
All the measures envisaged apply until 30 June 2021.
Smart working or leave for COVID-19
Article 2, Decree-Law 30/2021, provides for the right of an employee who is the parent of a child under 16 years of age, alternating with the other parent, to work in agile mode for a period corresponding in whole or in part:
- to the duration of the suspension of teaching or educational activity in the presence of the child;
- to the duration of the child’s SARS-CoV-2 infection;
- to the duration of the quarantine of the child ordered by the Department of Prevention of the competent Local Health Authority following contact wherever it occurred.
This benefit is granted to both parents of children of all ages with disabilities, specific learning disorders or special educational needs, in all the cases provided for above, or in the case of children attending day care centres whose closure has been ordered.
Workers working in agile mode have the right to disconnect from technological equipment and IT platforms, in accordance with any agreements signed by the parties and without prejudice to any periods of availability agreed upon. The exercise of the right may not affect the employment relationship or remuneration.
If it is not possible to work in an agile mode, an employee who is the parent of a cohabiting child under the age of 14 may, alternately with the other parent, take time off work for a period corresponding in whole or in part to the duration of the suspension of teaching or educational activities in the presence of the child, the duration of the child’s SARS-CoV-2 infection, and the duration of the child’s quarantine. This benefit is granted to parents of children with disabilities in a situation of ascertained seriousness, regardless of the child’s age, for the duration of the child’s SARS-CoV-2 infection, and for the duration of the child’s quarantine, or if the suspension of the child’s teaching or educational activities has been ordered, or if the child attends day care centres that have been ordered to be closed.
For periods of abstention, an allowance of 50% of salary is paid instead of remuneration.
Any periods of parental leave taken by parents from 1st January 2021 until the date of entry into force of Decree-Law 30/2021, during periods of suspension of teaching or educational activities in the presence of the child, the duration of the child’s SARS-CoV-2 infection, or the duration of the child’s quarantine, may be converted on request into the above leave, with the right to the allowance described above, and shall not be counted or compensated as parental leave.
In the case of children between 14 and 16 years of age, one of the parents, alternately with the other, shall be entitled, for a period corresponding in whole or in part to the duration of the suspension of teaching or educational activities in the presence of the child, the duration of the child’s infection with SARS-CoV-2, and the duration of the child’s quarantine, to take time off work without payment of pay or allowance or recognition of a figurative contribution, with a prohibition on dismissal and the right to retain employment.
Workers enrolled in the INPS Separate Management (Gestione Separata), self-employed workers, personnel of the security, defence and public rescue and local police sector, workers employed for needs related to the epidemiological emergency from COVID-19, workers employed in the health sector, accredited public and private sector, belonging to the categories of health professionals, social workers and socio-health workers, for children under 14 years of age for whom the suspension of teaching or educational activities has been ordered due to the presence of or infection by SARS-CoV-2 or due to quarantine of the child, may request the payment of one or more bonuses for the purchase of baby-sitting services up to a maximum total of € 100 per week, paid through the Family Booklet. Alternatively, the bonus is paid directly to the applicant for the proven enrolment of children in summer centres, supplementary services for children, territorial socio-educational services, centres with an educational and recreational function and supplementary or innovative services for early childhood.
The bonus is also granted to self-employed workers who are not registered with INPS, subject to the communication by the respective social security funds of the number of beneficiaries.
For the days in which one parent works in agile mode or takes leave, or does not carry out any work activity or is suspended from work, the other parent cannot take advantage of the leave or the bonus, unless he/she is also the parent of other children under 14 years of age born by other persons who are not taking advantage of any of the measures described.
FIXED-TERM CONTRACT IN DEROGATION ASSISTED AT THE TERRITORIAL LABOUR INSPECTORATE (ITL)
With the note no. 804/2021, the National Labour Inspectorate (INL) has provided indications regarding the correct interpretation of Article 19, paragraph 3, Legislative Decree 81/2015 (further fixed-term contract stipulated at the Territorial Labour Inspectorate), requested in view of the receipt of numerous requests for renewal of fixed-term contracts “in assisted derogation” related to hypothesis of change of the contractual level.
It is worth recalling that Article 19, paragraph 2, Legislative Decree. 81/2015, for the purposes of calculating the maximum duration of fixed-term contracts between the same employer and the same worker, expressly refers to the performance of tasks of the same level and legal category, with the consequence that, where the worker signs several fixed-term contracts with the same employer characterised by different classifications (of legal level and category), for the purposes of calculating the maximum duration established by Article 19, paragraph 2, the duration of the individual contracts will not be summed up, but only those, if any, linked by the same classification.
Paragraph 3 of Article 19, which provides for the possibility for the parties to enter into a new fixed-term contract of a maximum duration of 12 months before the Labour Inspectorate, is without prejudice to the provisions of paragraph 2, thus the special procedure applies only if the maximum duration provided for by the Law or by collective bargaining has been “used up” between the same employer and the same employee and the assisted derogation contract entails the performance of tasks of the same level and legal category.
For these reasons, if the employer and the employee sign a new fixed-term contract that provides for a different classification from the previous one, it is not necessary to apply for an assisted derogation after the maximum time allowed has elapsed.
Given that the distorted and evasive application of this principle could lead to the succession of a significant number of fixed-term contracts between the same persons without any actual change in the worker’s classification, the National Labour Inspectorate considers that, if doubts arise in this regard, inspections may be promoted to verify in practice whether the signing of successive and repeated fixed-term contracts between the same worker and the same employer complies with the provisions of the Law.
LATEST GUIDANCE FROM THE ITALIAN TAX AUTHORITY ON EMPLOYEE AND ASSIMILATED WORK INCOME
We inform you that the Italian Tax Authority, with the following interventions, has provided important indications concerning the taxation of employee income.
Smart working and reimbursement of expenses
The Italian Tax Authority, with its answer to tax ruling n. 314/2021, clarified that the amounts paid to reimburse its employees for the expenses incurred to perform work in agile work mode (e.g., electricity) must be excluded from taxation. The petitioning company was able to demonstrate that the reimbursement of expenses had been determined with objective criteria aimed at identifying the share of costs pertaining to the company.
The tax authorities, in another case (answer to tax ruling no. 328/2021), on the other hand, considered that the reimbursement of expenses to smart working employees should be taxed, as they were not quantified with objective and rigorous methods.
Corporate welfare plan and scholarships
The Italian Tax Authority, with the answer to tax ruling n. 311/2021, has clarified that scholarships paid to the children of employees within a company welfare plan must be taxed if it is not related to the excellence results of the students. It should be noted that the tax authorities also refer to Circular no. 238/E/2000, which, however, allowed the exemption of scholarships by highlighting the welfare character of study grants.
Taxation of performance bonuses and reasonable period
The Italian Tax Authority, with the answer to tax ruling n. 270/2021, has clarified that, for the purposes of the application of the detaxation of performance bonuses, by collective agreement it is possible to normalise the reference indexes in relation to the congruous period determined by the social partners. In the case at hand, the petitioner company and the trade unions had signed an agreement whereby, due to the restrictive measures due to COVID-19, the 2019 EBIT index was normalised to the period not worked in the year 2020. This made it possible to compare the 2020 EBIT with the 2019 EBIT and to verify the incrementality required by the relief provision.
LDP Payroll remains at your disposal for any further clarifications.