With the publication in the Official Gazette (“Gazzetta Ufficiale”) on 23 July 2021, the text of Law Decree n. 105/2021 entered into force and provides for a large number of activities and places that require a green pass (conceded upon vaccination with at least one dose, recovery from COVID-19, or negative swab) to be carried out or attended to, starting from 6 August 2021.
In the Official Gazette dated 23 July 2021, n. 175, the Decree Law number 105/2021 was published. Such Decree contains urgent measures to tackle the epidemiological emergency and to favor the safe exercise of social and economic activities. The state of emergency has also been extended until 31 December 2021 and activities and areas that are only accessible if in possession of a Green Pass have been identified.
Therefore, starting from 6 August 2021 some activities are only possible to whom is in possession of a COVID-19 Green Certificate (so called Green Pass) that is achieved in case of inoculation of at least the first Sars-CoV-2 vaccine dose (with validity from the fifteenth day following the inoculation until the date scheduled for the inoculation of the second dose, in the case of a double-dose vaccine. The green certificate is anyway valid for nine months after the completion of the vaccination cycle) or in case of recovery from Sars-CoV-2 infection (with validity 6 months); or in case of completion of a rapid molecular or antigenic test with a negative result for Sars-CoV-2 (with validity 48 hours).
The possession of the Green Pass has now, by the Law Decree in comment, been introduced as a prerequisite in order to carry out or gain access to the following activities or places – except for people excluded by age from the vaccination campaign and those exempt on the basis of appropriate medical certification issued according to the criteria defined by the Ministry of Health – as of 6 August:
- catering services carried out by any restaurant or establishment for indoor table consumption;
- performances open to the public, sporting events and competitions;
- museums, other cultural institutions and places exhibitions;
- swimming pools, swimming centers, gyms, team sports, wellness centers, also if located inside receptive structures, limited to indoor activities;
- festivals, conventions and congresses;
- spas, theme and amusement parks;
- cultural centers, social and recreational centers, limited to indoor activities and excluded children’s educational centers, summer centers and related catering activities;
- gambling halls, betting shops, bingo halls and casinos;
- public competitions.
The owners of services and activities for which the Green Pass is required are obliged to check that access to these services and activities is in compliance with the regulations in comment.
In the event of a violation, a fine ranging from Euro 400,00 to 1.000,00 may be imposed on both the operator and the attendee. If the infringement is repeated three times on three different days, the activity in breach may be closed from 1 to 10 days.
As of today, many issues remain on the table, even after the approval of the Decree Law in question. In fact, there is a debate in progress about the possibility of extending the Green Pass obligation also to other and more critical areas for which there is currently no vaccination obligation. A new decree is possibly expected to make the green pass compulsory on trains, planes and ships, as well as for teaching staff and school pupils and for employees, in order to gain access to the workplace.
As far as the possibility for companies to require their employees to show the “green pass” for the purpose of access to the workplace is concerned, such possibility is currently strongly debated, as there is no unanimity of views on the point.
However, at present, it seems correct to support a negative solution to this issue; in fact, the Decree Law above, does not include the workplace among those places where it is necessary to show the Green Pass in order to have the possibility to enter.
Similarly, the latest interventions of the Italian Privacy Authority for the Protection of Personal Data have been reluctant to provide for limitations in gaining access to workplace, at the point that it has been expressly forbidden to employers to acquire the names of vaccinated personnel or copies of the vaccination certificates, since these are sensitive data that can only be known by the company’s competent doctor.
On the contrary, doctrinal opinions and some case law pointed out that the processing of data relating to the vaccination of employees could be legitimate exclusively to the purpose of verification of the suitability of employees for the execution of the specific tasks to which they are assigned, thus allowing only the company doctor to issue judgments of partial unsuitability and / or temporary unfitness for workers who have not received the vaccine.
In this sense, it should be noted that also the latest case law (Court of Modena, 23 July 2021, judgment number 2467/2021) would seem to confirm the idea that COVID-19 immunisation may be a prerequisite in order for an employee to be considered suitable, but only with reference to the performance of certain specific tasks (and not in a generalised sense). The Court of Modena in the mentioned case found that in the health sector it is possible to subordinate employees’ work access to the achievement of an immunised status (for obvious reasons of protection of public health and the health of the most vulnerable subjects). However, also in this case, the Court did not authorise the imposition of disciplinary sanctions on employees who refuse to produce the documentation attesting their vaccinal status or on employees who are not vaccinated, since in such cases employers can only suspend the employees in question from work, with the consequent suspension of their remuneration.
Key Action Points for Human Resources and In-house Counsel
In conclusion, at present there is no legal basis for conditioning access to the workplace upon the possession of a green pass and/or the production of a negative swab, nor for rendering the vaccination compulsory for employees. However, this is a debate that is surely going to continue and that likely will be subject to further legislative regulation in the near future.