Extension of state of emergency and smart working

 

Law Decree 83/2020, containing urgent measures connected with the expiry of the epidemiological emergency declaration, has been converted, with amendments, into Law 124/2020, in force since 29 September.

Law Decree No. 125/2020, in force since October 8, 2020, then provided for the main consequential extensions to the state of emergency until January 31, 2021, also amending Law Decree No. 83/2020, already converted into Law: in particular, it provides for the extension until December 31, 2020, of the terms provided for by the provisions in Annex 1 to the Decree, except as provided for in numbers 3 and 32 of the Annex itself. As far as it is concerned, number 32 refers to article 90, LD 34/2020, which establishes, among other things, that the agile work mode may be applied by private employers to any employment relationship, even in the absence of individual agreements (so-called simplified mode), until the end of the state of emergency and, in any case, no later than 31 December 2020. Therefore, the simplified methods of communication of agile work already in use may be used until 31 December 2020.

Other emergency provisions related to agile work are summarised below.

 

Reference	Prediction
Workers (and family members) with disabilities, with pathologies with reduced working capacity and immune deficiency
Art. 39, D.L. 18/2020	Recognized severely disabled employees, or who have a recognized severely disabled person in their household, are entitled to perform the work in an agile manner if compatible with the characteristics of the performance. Employees in the private sector suffering from serious and proven pathologies with reduced working capacity are given priority in accepting requests to perform work in agile mode. The above provisions also apply to immunodepressed workers and family members of immunodepressed persons.
Parents with children in quarantine
Art. 21-bis, D.L. 104/2020	Parents, during the period of compulsory quarantine of their cohabiting child and by 31 December 2020, may carry out the work in agile mode (or abstain from work with an allowance of 50%) for all or part of the period corresponding to the duration of the quarantine of the cohabiting child, under 14 years of age, arranged following contact within the school plexus or structures regularly attended to follow music and language lessons, as well as in the context of basic sports activities, motor activities in structures such as gyms, swimming pools, sports centers, sports clubs, both public and private.
Parents with disabled children
Art. 21-ter, D.L. 104/2020	Parents who are privately employed and have at least one child with a recognized serious disability, provided that there is no other non-working parent in the household and that the work does not necessarily require physical presence, are entitled to perform the work in an agile manner, even in the absence of individual agreements, subject to compliance with the information obligations laid down in Articles 18 to 23 of Law no. 81/2017, until 30 June 2021.
Fragile workers
Art. 26, comma 2-bis, D.L. 18/2020	From 16 October to 31 December 2020, frail workers (in possession of certification issued by the competent medical-legal bodies attesting a risk condition deriving from immunodepression or from the outcome of oncological pathologies or from the performance of related life-saving therapies, including workers in possession of the recognition of disability with serious connotation according to article 3, paragraph 3, L. 104/1992) normally perform their work in an agile manner, also by performing a different job in the same category/area of classification or by carrying out specific professional training activities, including remote training.

 

 

Operating instructions for workers entitled to sick pay

 

 

Inps, with the message no. 3653/2020, intervenes to clarify that quarantine should not always be considered a disease. The institute specifies, in fact, that in the current emergency context, alternative ways of carrying out the employment relationship (agile or smart working, teleworking, etc.) have been encouraged, which have made it possible to ensure continuity in work and, at the same time, to significantly reduce the risks for the transmission of the SARS-CoV-2 virus in the workplace.

From another point of view, it should be noted that quarantine and precautionary surveillance for fragile individuals do not constitute a temporary inability to work due to an acute phase of the disease that absolutely prevents them from carrying out their work (a prerequisite for the recognition of the social security protection of the common illness), but situations of risk for the worker and the community that the Legislator intended to protect by equating, for the purposes of economic treatment, such cases with illness and hospitalization.

Consequently, it is not possible to have recourse to social security protection for illness or hospitalization in cases where the worker in quarantine under precautionary surveillance, because he is a fragile subject (according to Article 26, paragraphs 1 and 2, Law Decree 18/2020, converted into Law 27/2020) continues to carry out, based on agreements with his employer, work at home, through the aforementioned forms of work alternative to the presence in the office. In this circumstance, in fact, there is no suspension of the work activity with the related remuneration.

On the contrary, in case of illness, the worker is temporarily unable to work, with the right to access the corresponding social security benefit, compensating the loss of earnings.

It should also be noted that, following the entry into force of Law Decree 104/2020, Article 19 provides for special protection for workers domiciled or a resident in Municipalities for whom the Public Authority has issued measures to contain and prohibit expulsion from their territory, with the obligation to stay at home due to the epidemiological emergency by COVID-19, who have been prevented from reaching their place of work, limited to companies operating in the Emilia-Romagna, Veneto, and Lombardy Regions. This protection establishes that employers operating exclusively in the above-mentioned Regions may apply for access to Cigo, Cigd, Aso, and Cisoa treatments for the periods from 23 February 2020 to 30 April 2020. The application must be submitted within 30 days from the date of issue of the Institute’s message, which will dictate the technical requirements.

Italian workers who have gone abroad and have been subject to quarantine measures by the competent authorities of the foreign country will not have access to the protection of the disease provided for by Article 26, paragraph 1, D.L. 18/2020, converted into Law 27/2020 unless the same measure comes from the Italian Health Authorities.

 

 

Finally, Inps analyses the case of a worker who is the recipient of a Cigo, Cigs, Cigd, or ordinary cheque guaranteed by the Solidarity Funds. In this case, following the more general principle of the prevalence of salary integration treatment, the possibility of being able to apply for the specific protection provided for the illness will cease to exist.

 

 

Considering, then, the equal treatment of the protection referred to in Article 26, paragraphs 1 and 2, respectively, to illness and hospitalization, it is considered that the same indications set out above should also be applied for the regulation of the relationship between salary integration treatments and quarantine or precautionary surveillance services for fragile subjects, since the different protections are incompatible with each other.

Quarantine children under 14, smart working and parental leave

 

 

In the conversion of Law Decree 104/2020 (August Decree) by Law 126/2020, in force since 14 October 2020, the recent regulations issued to manage the school quarantine of children under 14, originally provided for by Law Decree 111/2020, were included in this measure, which has therefore been repealed.

In addition to changing the container, the quarantine regulations have also been revised, with the aim of extending the instruments provided for quarantines, again typed, originating outside the school context.

In particular, article 21-bis, Law Decree no. 104/2020, provides that a parent who is an employee may perform work in an agile manner for all or part of the period corresponding to the duration of quarantine of the cohabiting child, under the age of 14, ordered by the prevention department of the local health authority that is territorially competent following contact within the school plexus, as well as in the performance of basic sports activities, motor activities in facilities such as gyms, swimming pools, sports centers, both public and private.

It is also possible to perform agile work if the contact occurred within facilities regularly attended to follow music and language lessons.

Only in cases where work cannot be performed in an agile manner and in any case as an alternative to this measure, one of the parents may abstain from work for all or part of the period corresponding to the duration of the quarantine of the child, under the age of 14, ordered by the prevention department of the local health authority responsible for the area following contact within the school plexus, receiving, instead of remuneration, an indemnity equal to 50% of remuneration, calculated in accordance with s. 23, LD 151/2001, except for s. 23.2. These periods are covered by national contributions.

For days in which a parent benefits from one of the above measures, or also carries out work in an agile manner or in any case does not carry out any work, the other parent may not request to benefit from any of the above measures, except – a hypothesis included in Law no. 126/2020 – if he or she is also a parent of other children under the age of 14 who are not benefiting from one of the above measures.

50% leave: Inps instructions

 

Inps, through Circular no. 116/2020, provided instructions for the use of the COVID-19 compensated leave for quarantine of children, but before the amendment made by Law no. 126/2020: as the rules on leave have not changed, they are also applicable to the new regulatory context.

It should be noted, first of all, that the recipients of COVID-19 quarantine leave are only employed parents, thus excluding self-employed parents as well as parents registered with the Separate Account of Inps.

Furthermore, it is specified that, in order to take COVID-19 quarantine leave for children, the applicant parent must meet all the following requirements:

• have an existing employment relationship;
• not perform work in agile mode during the days of the COVID-19 child quarantine leave;
• the child for whom the leave is taken must be under 14 years of age;
• the child must be cohabiting during the whole period of the leave;
• the child for whom the leave is taken must have been placed in quarantine by order of the local health authority’s prevention department following contact within the above-mentioned areas.

In particular, for the purposes of cohabitation of the child, the Inps has specified that this occurs only if the registered residence is in the same home as the requesting parent, which is not relevant to the factual situations; in the case of foster care or placement of the child, the cohabitation is inferred from the measure of foster care or placement to the parent requesting the leave.

COVID-19 quarantine leave may be taken until 31 December 2020 and the maximum duration of the leave shall coincide with the quarantine period provided for by the provision of the Local Health Authority’s Prevention Department.

The leave can be taken during all periods of quarantine ordered for children by the Department of Prevention, therefore also in case of extension of the measure or new Asl measures issued for the same child or for another cohabiting child. On the other hand, if several measures provide for partially overlapping school quarantine periods for the same or other children, a single allowance is paid for each overlapping day.

Leave may be requested for the whole or part of the quarantine period.

Where both parents living with the child are entitled to such leave, they may take turns in taking the leave.

For the days of COVID-19 quarantine leave taken, the parent is entitled to an allowance of 50% of his or her salary, calculated according to the same rules as for parental leave. These periods are covered by national contributions.

Only working days within the requested period of leave are eligible for compensation. The indemnity is paid by the employer by means of adjustment or direct payment. In the latter case, the indemnity constitutes, in any case, employee income taxable for tax purposes.

Compatibility with other absences

 

The Inps illustrates the following cases of compatibility or incompatibility between COVID-19 quarantine leave for children and other types of absence relating also to the other parent living with the child for whom the leave is requested:

1. illness: in the case of illness of one of the parents living with the child, the other parent can take COVID-19 quarantine leave for the children, as the presence of a morbid event could imply an inability to take care of the child;
2. maternity/paternity: in the case of maternity/paternity leave for employees, the other parent may take COVID-19 quarantine leave if quarantine is ordered for the child other than the child for whom maternity/paternity leave is taken. However, COVID-19 quarantine leave cannot be taken if the child for whom quarantine is ordered is the same child for whom maternity/paternity leave is being taken. In the event of receipt of maternity/paternity benefits by members of the Separate Account or self-employed workers, the other working parent may take COVID-19 quarantine leave for the same child only if the parent receiving this maternity/paternity benefit is working during the eligible period.
3. Holidays: the use of COVID-19 leave for quarantine of children is compatible with the simultaneous (on the same days) use of holidays of the other parent living with the child;
4. unpaid leave: in the case of unpaid leave of one of the two parents cohabiting with the child, the other parent may take COVID-19 leave for quarantine of the children at the same time (on the same days);
5. fragile” subjects: the use of COVID-19 leave for quarantine of children by one parent living with the child is compatible if the other parent is a subject with particular situations of fragility, regardless of whether or not he or she is working or performing agile work;
6. leave and leave according to Statute 104/1992: COVID-19 quarantine leave for children may be taken on the same days when the other parent cohabiting with the child is taking the leave according to s. 33 (3) and (6) of Statute 104/1992, the extension of parental leave according to s. 33 of LD 151/2001, or special leave according to s. 42 (5) of LD 151/2001;
7. incapacity and invalidity pension: use of COVID-19 leave for the quarantine of children is compatible with cases in which the other parent living with the same child has been found to have a disabling condition such as to entail, for example, recognition of a serious disability (s. 3.3, Law 104/1992), 100% invalidity or invalidity pension.

The following are the cases of incompatibility between COVID-19 leave for quarantine of children and other types of absence relating to the other parent living with the child for whom the leave in question is requested:

1. COVID-19 children’s quarantine leave: COVID-19 children’s quarantine leave may not be taken on the same days by both parents, but only in an alternating manner between them, for the quarantine period set up by the competent Local Health Authority Prevention Department. Therefore, in case of requests submitted by parents living with the child for the same days, the request submitted chronologically before will be accepted;
2. parental leave: COVID-19 quarantine leave for children is incompatible with the simultaneous (on the same days) use of parental leave for the same child by the other parent living with the child. It should be noted that on days when the COVID-19 quarantine leave for children is not taken, it is possible to take days of parental leave;
3. mother’s or father’s daily rest days: the use of COVID-19 quarantine leave for children is not compatible with the simultaneous use by the other parent living with the child of daily rest days for breastfeeding for the same child;
4. termination of employment or work activity: COVID-19 child quarantine leave cannot be taken if the other parent living with the child is unemployed or in any case, does not work;
5. income support instruments for suspension or cessation of work: COVID-19 child quarantine leave cannot be taken if the other parent living with the child is unemployed or otherwise not working. Otherwise, if the parent cohabiting with the minor, benefiting from the above-mentioned instruments, has only a reduction in working hours, so that he or she continues to have to work, even if at reduced hours, the other parent cohabiting with the minor is entitled to the benefit of the COVID-19 child quarantine leave;
6. agile work: it is incompatible to take COVID-19 leave for quarantine of children with work in an agile mode of the applicant or of the other parent cohabiting with the child;
7. part-time and intermittent work: the use of COVID-19 child quarantine leave by one parent is incompatible during the contractual break of the other parent living with the child.

Submission of the application

 

The application for COVID-19 leave for quarantine of children must be submitted in telematic mode only.

The application must indicate the identification elements of the quarantine order issued by the competent Local Health Authority’s Prevention Department and, if the applicant is not yet in possession of the order, he must provide, within 30 days from the submission of the application, the identification elements of the same, under penalty of rejection of the application.

 

 

LDP remains at your disposal for any further clarification.

Best regards

LDP PAYROLL SRL-STP

Arianna De Carlo

Head of Payroll Department