FAQ: Green Workplace Passes – Commentary


Provisions
Faq

On September 21, 2021, Legislative Decree 127/2021 was published in Official Gazette, setting out the following workplace obligations and commitments in the private sector for the period October 15 to December 31, 2021. This article examines these provisions and answers some frequently asked questions.

Provisions

  • any person carrying out a work activity must have obtained and present their green pass on request in order to access their place of work;
  • the obligations related to compulsory vaccination already provided for for school employees, health professionals and employees of residential, social and social health establishments are confirmed (for more details please see the answer to the question below “Which are the obligations towards employees working in health establishments? “);
  • the obligation under the first point above applies to any person who performs work, training or voluntary activities in the workplace, regardless of the type of relationship, including those engaged in the context of service contracts;
  • people exempt from vaccination are not required to obtain and present a green pass if they can provide a medical certificate that meets the criteria defined by the Ministry of Health;
  • employers must:
    • also verify compliance with the requirements for access to a workplace vis-à-vis service providers;
    • define by October 15, 2021 the operating procedures for checks, including random checks, providing, as a priority, if possible, that these checks be carried out when entering a workplace; and
    • formally identify the persons responsible for recording breaches of obligations.
  • checks on the green pass are carried out in accordance with the provisions of the Prime Minister’s decree (DPCM) of June 17, 2021 2021 (via the VerificaC19 application);
  • in order to protect the health and safety of employees in the workplace, employees who have not obtained a green pass or who are without it at the point of entry or in a workplace, are considered absent from work without justification until such a pass is presented. The rule is valid until December 31, 2021; this will not lead to disciplinary consequences, except in cases of misconduct, and the right to employment will be maintained. No salary or other remuneration or consideration, whatever the denomination, is payable for the period of absence;
  • for companies employing less than 15 employees, if the green pass is not presented within five days, the employer can suspend and replace the employee for a period not exceeding 10 days, and not exceeding the date of December 31, 2021;
  • employers and employees who violate the obligations listed above are subject to the following conditions:
    • an administrative fine of between € 400 and € 1,000 for failure to verify and adopt organizational measures, and between € 600 and € 1,500 for access to a workplace, unless the event constitutes a criminal act . If the offense includes the use of a vehicle, the penalty is increased to one third. In the event of a repeat offense, the fine is doubled.
  • penalties are applied by the local government office (prefect) and are set by officials, agents and agents of the State or regions, provinces and municipalities.

Faq

Do the obligations to check, adopt organizational measures and access to the workplace also apply to self-employed workers (consultants, contractors, etc.)?
Yes – taking into account the scope and objectives of the decree and the wording used therein (Article 3, paragraphs 1 and 2).

Do the obligations to verify, adopt organizational measures and access to the workplace also apply to owners, directors and members of administrative and supervisory bodies (such as a board of directors? )?
The decree is addressed to those who carry out work or collaboration activities, regardless of the type of employment (Article 3 (1) and (3)). Taking into account the scope and objectives of the decree, the necessary reference to the regulations protecting health and safety at work and the relevant definitions (article 2087 of the Civil Code and Legislative Decree 81/2008), it is considered that the The obligation also extends to directors who carry out operational activities and to company directors who enter the workplace.

Do the obligations to check, adopt measures of organization and access to the workplace replace the precautions (social distancing, mask, pre-screening, etc.) already in place in compliance with national anti- covid-19?
No – in the absence of a specific provision in the decree, the instructions contained in the emergency regulations and in the national protocols are still valid until the end of the state of health emergency (December 31, 2021). Consequently, the obligations provided for in the decree are additional.

It should be noted that article 29 bis of Legislative Decree 23/2020 provides that the adoption and application of the requirements provided for in the national protocols against covid-19 are considered to comply with the protection obligations under the Article 2087 of the Civil Code (which has implications in terms of civil and criminal liability also under Legislative Decree 231/2001) with regard to infection with covid-19 at work.

How do the obligations of verification, adoption of organizational measures and access to workplaces provided for by the decree coordinate with the indications of the Data Protection Authority?
The current position of the Data Protection Authority should be reviewed, as expressed in recent decisions and opinions (and FAQs), according to which a vaccination certificate cannot be considered compulsory to allow access to the place work or services, or the exercise of an employment relationship. , if it is not provided for by a specific law.

The reference in the decree to the procedures provided for in the DPCM of June 17, 2021 (via the VerificaC19 application), however, suggests a ban on the indiscriminate recording of data related to checks on green passes.

What are the obligations towards employees working in health establishments?
The obligations in question are governed by article 4 bis of Legislative Decree 44/2021 and concern all persons, including external ones, who carry out their work in any capacity whatsoever in:

  • reception and long-term care establishments;
  • assisted medical residences;
  • hospices;
  • rehabilitation facilities;
  • residential facilities for the elderly and other residential facilities which provide inpatient care to persons who cannot be cared for in day hospitals or outpatient facilities;
  • outpatient services for those following acute hospital stays or long-term stays for disabling conditions; and
  • social assistance services (ie health care workers).

From October 10, 2021 to December 31, 2021, all nursing staff are required to be vaccinated against covid-19, except in the event of an exemption with a medical certificate.

The managers of the aforementioned establishments and the employers of health workers are required to ensure that this obligation is respected, by acquiring the necessary information according to criteria which will be defined in the DPCM.

Healthcare workers who have not been vaccinated cannot perform activities or tasks that involve face-to-face contact or the risk of spreading contagion. Until the fulfillment of the vaccination obligation or the completion of the national vaccination plan (no later than December 31, 2021), these employees must be assigned to different tasks without reduction in pay. Reallocated roles should also be performed in such a way as to avoid the risk of the spread of coronavirus infection or, if this is not possible, such employees should be suspended from work without the right to pay or any other form of remuneration. or compensation.

The violation of the obligations of verification and access to workplaces is punishable by fines ranging from € 400 to € 1,000, unless the act constitutes an offense.


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