With the publication in the Official Gazette (“Gazzetta Ufficiale”) n. 226 of 21 September 2021, the Decree Law n. 127/2021 on “Urgent measures to ensure the safe performance of public and private sector employment by extending the scope of the COVID-19 green certification and the strengthening of the screening” was published. Said Decree Law extends the obligation to show the green pass to all workers of the public and private sector as a requisite to enter the employer’s workplace and execute the work performance. Those employees who are not in possession of a green certification are not allowed either to enter and to remain within the premises of the employer and shall be considered absent without justification, and so without remuneration, although not disciplinary action can be carried out against them.
After long political debates, the Green Pass obligation for accessing the workplace, both in the public and private sector, has been approved by the Government.
The Green Pass possession obligation for entering the workplace – that is, to “possess and exhibit, upon request, the green COVID-19 certification” – has a limited temporal effectiveness to the period between 15 October 2021 and 31 December 2021.
The above said obligation is extended not only to ‘direct’ employees but also to ‘other’ employees (i.e. of third parties pursuant to services contracts and so on) and to all persons who, for whatever reason, carry out their work or training or voluntary activities in the workplaces.
The only subjects excluded are the subjects exempt from the vaccination campaign on the basis of suitable
medical certification issued according to the criteria defined by a circular of the Ministry of Health.
The control over the Green Certification possession is delegated to public or private employers who will also control on individuals who are not their own employees but nonetheless working or present in the workplace.
By the date of entry into force of the obligation, public and private employers will be required to set forth operating procedures through which carrying out the control over possession of the required certification from the employees, also indicating and delegating the persons in charge of this activity.
With regard to the methods for verifying the possession of the certificate, such methods should include entry checks, with the possibility of further sample checks during the day, always in compliance with the provisions of the Prime Minister Decree of 17 June 2021 and subsequent amendments and additions, which require the verification of the QR code through the mobile application (called “VerificaC19”) without the acquisition of any data other than that relating to the ownership and the validity of the certificate.
From the point of view of the consequences, in the event of failure to comply with the obligation, the employee, whether public or private, to whom access is denied, will immediately face the consequence of incurring in unjustified absence for all the days in which he is not in possession of the certificate, accompanied by the suspension of the remuneration but, on the other hand, suffering no disciplinary consequence.
A different case is that in which the employee enters the workplace without the required certification, in which case he will be subject to the administrative sanctions referred to below, further to disciplinary consequences that in this case may apply (the hypothesis seems to be the case where the worker has not been checked on entry and a subsequent check carried out inside the company’s premises on him reveals that the employee is in breach of the obligation).
It is useful to point out that special rules for companies below the threshold of 15 employees have been stated. In such companies the employer is allowed to replace the resource who is not in possession of the Green Certification for a maximum period of ten days, renewable only once, and may suspend for the same period his employee at condition that he has not shown the said certification for five days.
The administrative sanctions are quantified in different measures depending on whether the conduct is attributable to the employer or the employee, and here too the rules for the public and private sectors coincide.
If the worker enters the workplace in violation of the Green Pass obligation, he is punished with the administrative sanction of the payment of a sum from Euro 600.00 to Euro 1,500.00. In this case, the employer must then report the matter to the Prefecture for application of the administrative penalty. On this point, there have been different points of view, in fact someone pointed out that the control in order to apply administrative sanction should be executed under the control of the Prefecture only through policemen or police. However, the FAQ issued by the Prime Minister on 12 October 2021 confirmed the reporting duty on the employer and specified that the controls organised by the Prefecture must be executed through the Health Authorities and the Labour Inspectors.
On the other hand, when the employer does not verify the possession of the certification or does not adopt the organisational measures for checking the access of workers inside the workplace, he shall be punished with the administrative sanction of the payment of a sum from EUR 400.00 to EUR 1,000.00.
To the frame so far described, on 12 October 2021, a Decree issued by the Prime Minister provided public and private employers with IT tools allowing daily and automated verification of the possession of certifications, in addition to the VerificaC19 app.
Such tools are:
- the query of the Ministry of Health’s national DGC platform accessible with the tax codes of employees on duty through the Social Security National Institute digital platform and/or the public administration platform NoiPA;
- the integration of the system for reading and verifying the QR code of the Green Certification in the automated control systems for physical access to workplaces.