Covid-19 coronavirus – The Rilancio Decree in force in Italy: what employers need to know
Employment Senior Associate
27 May 2020
The so-called "Rilancio Law Decree," come into force on 19 May 2020, clarifies, amends or defers many provisions of the so-called previous "Cura Italia Decree".
Among the interesting provisions:
- both individual and collective dismissals for objective reason are suspended until 17 August 2020,
- the provisions on fixed-term employment relantionships' extentions have been temporarly simplified, (iii) further furlough periods are available for employers, and
- employees' special leaves have been increased.
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Prohibition of dismissal
The maximum effective period of the prohibition of both individual and collective dismissals for objective reason – already envisaged by article 46 of Cura Italia Decree as of 17 March 2020 – is further extended for five months (i.e., until 17 August 2020). Furthermore, the Rilancio Law Decree specifies that the aforementioned prohibition also includes any procedure which is preliminary to a dismissal for objective reasons, as provided for employees who have been hired prior to 7 March 2015, pursuant to article 7 of law No. 604/1966. Lastly, employers who have been notified dismissals for objective reasons, notwithstanding the prohibition has been applicable since 17 March 2020, are allowed to unilaterally revoke the measure, even by way of derogation from the fifteen-day term envisaged by article 18 of the Workers' Statute and thus seamlessly reinstate the employment relationship without incurring any of the penalties envisaged with regard to unlawful/null dismissals, provided that they apply for the furlough measures provided for by the Cura Italia Decree at the same time as the revocation.
A right to so-called smart working (i.e. working from home) is being recognised for the benefit of employees in the private sector, who have at least one child under 14 years old, provided that the other parent is not benefiting from income support measures, in the event of suspension or termination of employment, or is currently working. Such right is also recognised in the absence of individual agreements and up to the extent that it is consistent with the duties required by the job, for the entire epidemiological emergency. Furthermore, the decree acknowledges that smart working is possible even in the absence of individual agreements and subject to a simplified notification to the Ministry of Labour, until 31 December 2020.
The Rilancio Law Decree, by way of derogation from article 21 of Legislative Decree 81/2015 (in matters of limits on extensions and renewals of fixed-term agreements) establishes that it is now possible to renew or extend any fixed-term agreements, which were already in place as at 23 February 2020, until 30 August 2020, even in the absence of "temporary and objective needs unrelated to the ordinary operations, or needs for replacement of other employees" or "needs related to temporary, significant and unforeseeable increases in ordinary activity", that is, the hypothetical reasons that had been introduced in that respect by Legislative Decree 87/2018 (the so-called "Dignità Decree").
Employers may continue to apply for the ordinary wage-guarantee lay-off plan (cassa integrazione ordinaria - CIGO) or ordinary allowance (assegno ordinario), for Covid-19-related reasons, for a maximum term of nine weeks starting from 23 February 2020 until 31 August 2020. However, employers who have already availed themselves of the aforementioned nine weeks are granted an extension for additional five weeks. In addition, a further four week period can be used between 1 September and 31 October 2020. Employers engaged in certain specific sectors (i.e., tourism, trade fairs, leisure facilities, live shows and cinemas) are entitled to avail themselves of such additional four weeks even before the aforementioned date.
The wage-guarantee lay-off plan can be applied for within the end of the month in which the reduction or suspension of activity has occurred. Yet, the deadline for submitting applications related to the period between 23 February 2020 and 30 April 2020 has been scheduled for 31 May 2020. Therefore, in the event the application has been submitted after the aforementioned terms, the wage-guarantee lay-off arrangement will not apply to any time that is one week prior to the application date. In addition, following the amendments provided by Rilancio Law Decree, article 19, paragraph 1, specifies that the beneficiaries of the ordinary allowance, as provided for by the Fondo di Integrazione Salariale (the so-called FIS), will be entitled to receive the allowance envisaged for households, which is usually only granted to beneficiaries of CIGO and CIGD.
Lastly, the Rilancio Law Decree has reintroduced the reporting and consultation procedure with trade unions (to be carried out within three days of the preliminary notification of the wage-guarantee layoff plan to INPS), which had been established in the initial wording of Cura Italia Decree and later deleted upon its conversion into law. Finally, it is confirmed that companies which have resorted to wage-guarantee layoff plans can also avail themselves of the ordinary wage-guarantee layoff plan or ordinary allowance (assegno ordinario) for Covid-19-related reasons, for the same term, i.e. nine weeks, which can be extended up to five weeks and, if necessary, an additional four weeks in accordance with the procedures and timing above.
Wage-guarantee layoff plan by way of derogation
Even the wage-guarantee layoff plan by way of derogation can be granted for five additional weeks in the case of employers who, between 23 February and 31 August 2020, have entirely used the nine weeks provided for by the Cura Italia Decree as well as for further four weeks from 1 September until 31 October 2020. In this case, employers engaged in specific sectors (i.e., tourism, trade fairs, leisure facilities, live shows and cinemas) are also entitled to avail themselves of the additional four weeks prior to 1 September 2020.
Streamlined procedures for the payment of the aforementioned unemployment benefits
In order to make funds rapidly available, employers who wish to be granted direct payment of the benefits, shall apply within the fifteenth day of the suspension or reduction of activity. As a result, INPS will have the payment of 40% of the hours authorised for the whole period and will only pay the remaining portion (or recover from the employers any amount unduly paid in advance) after the employers have sent all the employees' data (which should be done within thirty days of the aforementioned advanced payment). Furthermore, specific provisions are envisaged with regard to the wage-guarantee layoff plan by way of derogation.
Working parents with children younger than 12 years old are entitled to a maximum of thirty days of special leave paid with an indemnity equal to 50% of the remuneration. These days may be used within the period from 5 March 2020 until 31 July 2020, either on a continual or fragmented basis. These special leave days are subject to figurative social security contributions payment. In the event children are between 12 and 16 years old, this form of paid leave shall not be paid or subject to figurative social security contributions payment, but it is forbidden to dismiss these employees' in the event of absence from work. Alternatively, there is the option of a bonus for baby-sitting services, up to a maximum of €1,200, in order to pay either for a babysitter or childcare and educational services.
Twelve additional days of special paid leave are provided for employees assisting relatives with disabilities pursuant to Article 33 of Law no. 104/1992 and to be used during the months of May and June.
Quarantine and sickness
The Rilancio Law Decree provides no amendments to the sickness treatment provided by the Cura Italia Decree. Indeed, any period of time spent, either in quarantine or in isolation at home under constant monitoring due to Covid-19 until 31 July 2020, shall be considered to be equal to sick leave for the purposes of the remuneration terms to be applied under applicable laws; furthermore, such period shall not fall within the period in which the employer is obliged to maintain the employee’s position in the event of sickness (periodo di comporto).
The Rilancio Law Decree provides for the obligations of all private and public employers to ensure exceptional medical surveillance, during the entire emergency period and towards employees exposed to higher risks because of other health factors (i.e. age, other illnesses, cancer, life-saving treatments, etc.) or Covid-19 contagion. In addition, the (few) employers which are not required to mandatorily appoint a company physician, will have to appoint one for the duration of the Covid-19 emergency or, in alternative for such purposes, use the specific services offered by Medical Territorial Authorities (ASL) or by the National Institute for health and safety at work (INAIL). Finally, if the medical surveillance certifies that the employee is not suitable for the job duties, this will not amount to a legitimate reason for the employee's dismissal.