Following the publication in the Official Gazette of 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” – which extended 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 – a Decree issued by the Prime Minister was published on 12 October 2021, containing specific indications about the means of control of the possession of the Green Pass that employers may implement.
The Green Pass obligation for accessing the workplace, both in the public and private sectors, has been approved by the Government with the publication of Decree Law n. 127/2021 and is now in force (for details, see LabLaw’s articles of October 2021).
On 12 October 2021, a Decree issued by the Prime Minister provided public and private employers with further IT tools allowing daily and automated verification of certifications, in addition to the VerificaC19 app, the official app through which the barcodes of the Green Pass of employees are scanned and verified.
These further tools are:
- the query of the Ministry of Health’s national DGC platform accessible with the tax codes of workers 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.
Also on 12 October 2021, the Prime Minister issued a guideline in the form of Frequently Asked Questions to better explain, under a practical point of view, the framework for the Green Pass control by the employers. According to the more relevant FAQ:
1) each company is autonomous in organising controls, in compliance with privacy regulations. Employers shall define the operating procedures for the organisation of checks, including sample checks, giving priority, where possible, to checks carried out at the time of access to workplaces and shall identify by formal act the persons in charge of ascertaining violations of the obligations. Checks should be carried out in such a way as not to cause delays or queues at the entrance into the company;
2) employees who, for proven health reasons, cannot receive the vaccine against COVID-19 will have to present a certificate containing the appropriate “QR code” that shall be scanned in the context of the controls. Meanwhile the relevant certificate is released, exempted employees – who have submitted the relevant health documentation to the competent doctor for the release – will not be subject to any checks;
3) for those employees who are waiting for a valid Green Certificate to be issued and are entitled to receive it, while waiting for its release, it will be possible to make use of the temporary documents issued, in paper or digital format, by public and private health structures, pharmacies, analysis laboratories, general practitioners and freely chosen pediatricians;
4) all those who work, in any capacity and so not only subordinately or permanently, for the employer, or are present for training or as volunteers within the company premises are subject to control;
5) in cases of specific organisational needs of the company and when requested by the employers, alternatively to the entrance check, workers are required to give the employer notice about their Green Pass status (which is to report whether they are in possession of a valid Green Pass). This will allow the employer to manage the organisational needs that are consequent to eventual absences of employees;
6) the Green Pass must be valid at the time the worker first enters the workplace on a daily basis and may expire during his daily working hours. In such case, there is no need for the employee to leave the premises, so if during a daily check the Green Pass is found to be expired but was not at the time of the entrance of the employee inside the premises, he may continue and finish his daily working activity;
7) the Green Pass check is not conditioned upon whether the location in which the employee performs his activity is outdoor or indoor, and so it shall be executed in both cases;
8) possession of the Green Pass is also required for foreign workers if they have to work for Italian companies, regardless from where they are located. In a particular case, when foreign haulers (employees) who have to load and unload goods do not have a Green Pass, it is possible to use the staff of the Italian company, to whom goods are delivered, for loading and unloading operations so avoiding contacts and maintaining social distancing between the two companies’ employees.
Some practical elaborations about the Green Pass obligation and its control by employers are the following:
- employees working as temporary agency workers, in the context of procurement or secondment contracts, must also be in possession of a Green Pass and the obligation to monitor them is incumbent both on the employer and the company to whom the service is provided;
- the obligation to be in possession of a regular Green Pass applies to persons who occasionally access the company for delivery services, and to suppliers, being persons entitled to access the workplace;
- the size of the sample of checks sufficient to consider the obligation of the employer as fulfilled is not specified by the law, but it should certainly be of a significant proportion with respect to the number of persons entering the workplace;
- with reference to the organisation of controls, it might be largely appropriate to involve the trade unions in order to share the organisational and management aspects;
- with regard to the identification of the persons in charge of verifying violations, the law does not specify whether they must necessarily be employees or may be third parties – on this point, however, the answer seems to be that the use of third parties is allowed;
- with regard to the information to be provided to workers about the Green Pass obligation and the methods of its verification, the law does not state anything, but from a practical point of view, it seems necessary to inform all employees about the methods and persons responsible for the control;
- in case a worker does not have a Green Pass, but his work activity can be carried out in smart working, in line with good faith obligations, it seems advisable to allow him, if the relevant activity can be performed from a remote location, to work in such modality.