Legal update: Italy makes Green Pass mandatory for all workers

Overview

• From October 15, 2021 to December 31, 2021, private sector workers in Italy must possess and show, on request, a valid Green Pass to gain access to the workplace.
• The obligation applies to all people who carry out work in the workplace, including training work and volunteer activities, and persons with all types of working contracts.
• The obligation does not apply to those who are exempt from the national vaccination programme with an appropriate medical exemption certificate issued according to the criteria offset out by the Italian Ministry of Health.

Employer’s obligations

• Employers are required to verify compliance with the Green Pass requirement set out in Decree 127.
• By October 15, 2021, employers must establish internal procedures for carrying out the relevant checks and in addition formally identify the person(s) responsible for determining any violation(s) of the regulations regarding entry into the workplace.
• From October 15, 2021 to December 31, 2021, employers must carry out the relevant checks, which may be on a sample basis only, giving priority, where possible, to making such checks during the time that the workplace is usually accessed.
• The person(s) identified as responsible for ascertaining any violation(s) of the regulations regarding entry into the workplace will be required to submit relevant documents to the competent authorities.
• The obligation to check for compliance with the Green Pass requirement falls both on the employer of the hosting company and on the employer of the guest worker.

Consequences for a worker without a Green Pass

Lack of Green Pass

• From October 12, 2021 to December 31, 2021, any worker who does not have a Green Pass, will not be permitted access to the workplace and absence(s) from work for this reason are deemed “unjustified”.
• A worker who has been denied access to a workplace for not possessing a Green Pass may regain access to the workplace at such time as the worker provides the Green Pass.
• The worker who is denied access to the workplace for non-possession of a Green Pass should suffer no disciplinary sanctions for the days of unjustified absence.
• The workers retain their job retention rights. However, they will have no right to salary or other compensation or remuneration of any kind for any day(s) of unjustified absence.

Evasion of Green Pass checks

• Any worker who accesses or attempts to access a workplace in violation of the obligation to possess and exhibit a Green Pass:
  • may be subject to a fine of between €600 and €1,500 and
  • may be subject to disciplinary proceedings brought by the employer.

Risk of sanctions for employers

• Any employer who fails to carry out its obligations under Decree 127 (including organizing control checks for entry to the workplace) may be subject to a fine of between €400 and €1,000.
• In case of repeated violation of Decree 127 obligations, an employer may be subject to fines of double those amounts.

Replacement workers

• Small companies (those with less than fifteen workers), have the right, after the fifth day of unjustified absence of a worker for lack of Green Pass, to suspend the employee and replace the suspended employee. The suspension is effective for the same duration as that of the replacement employment contract, but should not exceed a period of 10 days renewable only once, and not beyond December 31, 2021.
• For companies having more than fifteen employees, Decree 127 introduces no new specific rules regarding replacement workers; in such case, employers may resort to fixed term contract solutions already provided by law.