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Compulsory vaccination, super green pass in the workplace and agile working in Italy

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Livio Bossotto

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Milan

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13 January 2022

Law-Decree 7 January 2022, No.1, which provides for a series of measures to deal with the Covid-19 emergency, with a particular focus on workplaces, schools and higher education institutions, entered into force on 8 January 2022 in Italy.

The main changes include:

Extension of compulsory vaccination for the prevention of the SARS-CoV-2 infection: the text under review imposes, from the date of entry into force of the measure and until 15 June 2022, in order to prevent the spread of the SARS-CoV-2 infection, the compulsory vaccination of Italian citizens and citizens of other EU Member States residing in the territory of the State, as well as foreign citizens who have reached the age of 50.

However, the measure provides for the waiver of the obligation in cases where it has been ascertained that there is a danger to health, in relation to specific clinical conditions documented by the general practitioner or doctor vaccinator, in accordance with the circulars of the Ministry of Health on exemption from vaccination against SARS-CoV-2 and the postponement of vaccination, at the earliest possible date, in the case of infection with SARS-CoV-2.

In the case of non-compliance with the above-mentioned vaccination obligation, a pecuniary administrative sanction of €100 shall be applied to each of the following groups:

  1. subjects who, on 1 February 2022, have not started the primary vaccination cycle;
  2. individuals who, as of 1 February 2022, have not received a dose of the primary vaccination cycle in accordance with the instructions and within the time limits established by the circular of the Ministry of Health; and
  3. subjects who, starting from 1 February 2022, have not received the booster dose following the primary vaccination cycle within the terms of validity of the Covid-19 green certifications provided for by Article 9, paragraph 3 of Law-Decree No. 52 of 22 April 2021, converted, with amendments, by Law No. 87 of 17 June 2021.

Extension of the so-called "Super Green Pass" in the workplace: the new Article 4-quinquies, introduced by Law-Decree of 7 January 2022, No. 1, provides that, as of 15 February 2022, all employees to whom the above-mentioned vaccination requirement applies, regardless of the sector in which they work and the type of activity they carry out, must possess and will be required to show, for access to workplaces within the national territory, the so-called "Super Green Pass", i.e. certification attesting to either vaccination or recovery, since it is no longer sufficient, in order to carry out their work, to only take a molecular or antigenic swab.

Employers will be in charge of verifying the certifications and those employees who do not have the Super Green Pass or who are not in possession of it when entering the workplace will, from 15 February 2022, be considered unjustified absentees. This condition will not entail disciplinary consequences and will not affect their right to keep their jobs in the period before they obtain the aforementioned certification, which must be done no later than 15 June 2022; however, during the period of their unjustified absence, no pay or other compensation or emolument, however denominated, will be paid.

In addition, after five days of unjustified absence, company employees who do not have a Super Green Pass may be suspended for the duration of the employment contract stipulated for their replacement, but in any event for no longer than ten working days at a time, renewable until 31 March 2022, without disciplinary consequences and with the right to keep their job.

The administrative penalty for employees who go to work without the required enhanced certification has been set at the payment of a sum of money of between €600 and €1,500, while management who fail to enforce the rule will be fined between €400 and €1,000.

Finally, on the subject of agile working, it is worth noting the circular of the Ministry of Public Administration and the Ministry of Labour and Social Policies, aimed at raising awareness among public administrations and private employers of the need to make full use of all the flexibility tools that the relevant sectoral regulations already allow.

Specifically, for private companies it is specified that, by virtue of the extension established by Law-Decree of 24 December 2021 No. 221, "the agile work mode can be applied to any employment relationship even in the absence of individual agreements" between a company and an individual employee and in general it reiterates the explicit recommendation to use agile working "for activities that can be carried out at home or at a distance", stressing the need, on the part of the employer, to "ensure adequate conditions of support for the employee and his activity".

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