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The discipline of the Italian law decree “Green Pass” with regard to the private working sector

published on 28 September 2021 | reading time approx. 4 minutes

On September 21, 2021, after a long series of consultations, Decree Law No. 127 (hereinafter, "DL Green pass") was published by the Italian Government.

The measure in question aims to regulate the obligation to possess the Green pass (hereinafter, “Green pass” or “COVID-19 Green Certification”) for employees in the public and private sectors, regarding the access to the workplace.

This contribution will highlight the salient points relating to the content of Article 3 of the Decree-Law, which expressly defines the obligations of the actors of the private employment context.

Subject of the measure: according to the DL Green pass, in order to access the place where the work is carried out, it is necessary to be in possession of the COVID-19 Green Certification, showing it, when requested, to the parties responsible for the verification process.
Scope of application: the rule in question is applicable to the performance of any work, volunteer or training service, including work activities linked to employment contracts made up outside the company.
Exemptions: are expressly exempted from the possession of the Green Pass subjects excluded from the vaccination campaign on the basis of appropriate medical certification.
Temporal Validity: the regulatory provision will be in effect from October 15, 2021 through December 31, 2021.
Green pass possession checks:

the controls must be carried out by the employers/principals both in relation to their own employees and to any external persons who carry out their work activities inside the company premises. Regarding this last point, the Green pass’ possession of the external people shall be checked by their respective employers too;
checks must be carried out, where possible, at the time of access to workplaces. They may also be carried out on a sample basis;
the checks must be carried out in compliance with the guidelines that will be defined by a specific government decree;
the persons in charge of ascertaining and contesting the lack of possession of the Green Pass shall transmit the relevant acts to the competent Prefecture.

6. Employer's obligations:

before 15 October 2021: the employer is required to define the operating procedures for carrying out the checks. In addition, the employer is required to identify, by means of a "formal act", the persons responsible for verifying and challenging any violations;
from 15 October to 31 December 2021: the employer is required, through persons formally appointed, to verify the possession of the Green Pass for access to workplaces. In the event that any violations are ascertained, a report will be made to the competent Prefecture.

7. Sanctions for the employer/principal:

the employer or the principal who does not organise or does not carry out the controls required by the regulations is subject to an administrative sanction for an amount varying from EUR 400.00 to EUR 1000.00;
in the event of repeated failure to carry out checks, the sanction is doubled.

8. Employee Fines:

employees who communicate they are not in possession of the Green Pass or they are not in possession of it at the time of access to the workplace shall be considered unjustified absentees until the submission of the aforementioned COVID-19 Green Certification, and in any case no later than 31 December 2021;
employees who access company premises by evading the controls provided for shall be subject to an administrative sanction for an amount varying from EUR 600.00 to EUR 1,500.00. For the employee shall also apply the disciplinary consequences provided for each sector of reference;
when subject to the application of the unjustified absent, employees are not allowed to receive their salary, pay or any other remuneration or emolument however named for the entire duration of absence;
in the event of ascertainment of the lack of possession of the Green pass, the employee cannot be subjected to disciplinary sanctions and retains the right to the preservation of the employment contract;

9. Employer with fewer than 15 employees: companies with fewer than 15 employees are subject to compliance with the general rules, with some exceptions:

after the fifth day of unjustified absence of the employee, the employer has the right to suspend his employee for the duration corresponding to the one of the employment contract stipulated for the replacement;
the above suspension may last for a maximum of 10 days, renewable once and in any case not later than 31 December 2021.

10. Smart-working: the DL Green pass does not explicitly provide for the use of smart-working as an alternative measure to an unjustified absence.

The line of the Italian Government, on this front, seems to be clear. However, in the face of internal organizational needs of the office, the employer who asks the employee to work in smart-working does not imply the obligation of possession of the Green Pass for the latter. The possession of the COVID-19 Green Certificate, in fact, is not required for the performance of work, but only to access the workplace.

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