Green Pass in the workplace | Highlights for the private sector

On 16 September 2021 the Council of Ministers approved the law decree that renders it obligatory to hold a Green Pass in the workplace, whether a public or private entity employer ("Decree"). To date, the official text of the Decree has not yet been published on the Official Gazette, but, as is evident from the draft of the Decree that is in circulation, there are numerous changes that affect, in particular, the private sector.

The main points of the Decree affecting the private sector are summarised below:

• from 15 October to 31 December (i.e. the end of the state of emergency) all workers in the private sector, including freelancers and people rendering their services under works or service contracts, must hold a Green Pass in order to be entitled to enter the workplace, and will also be obliged to exhibit this at the request of the employer and/or its appointed staff;
• employers and/or principals, in relation to their employees, or third parties rendering services in the workplace, will be obliged to verify that they all hold a Green Pass;
• within 15 October 2021, businesses will have to define how they intend to organise these controls. The checks should be carried out, preferably, upon entering the workplace and, if necessary, on a sample basis. Businesses will also have to appoint – by means of a formal document - the staff required to carry out said controls and object to any violations that are identified;
• the Decree provides that the worker obliged to hold a Green Pass - informing the business that they do not hold this, or who does not have the Green Pass when entering the workplace - is considered as absent without justification and with the resulting immediate suspension from work and from any salary entitlement (or any other payment or emolument). The suspension must be notified immediately to the relevant individual and is effective until such time as the Green Pass is presented (and therefore not later than 31 December 2021). In those businesses employing 15 or less employees, after the fifth day in which the worker fails to exhibit their Green Pass the employer may suspend the worker for the period corresponding to that of the contract substituting them, and in any case for no longer than ten days and not beyond 31 December 2021;
• workers so suspended are in any case entitled to retain their post and no disciplinary sanctions may be applied to them;
• access to the workplace by employees who do not hold a Green Pass is on the other hand relevant for disciplinary purposes, and can therefore give rise to a disciplinary sanction as well as an administrative sanction. The Decree also provides sanctions for employers who fail to verify compliance with the Green Pass rules or who have failed to set up the correct procedure to carry out the checks. (It is also not possible to exclude the possibility of sanctions for failure to adopt the necessary safety measures in the workplace according to the applicable sector rules);
• finally, the Decree does not seem to expressly provide any provision regarding the use of smart working as an alternative to the suspension of the employee who does not hold a Green Pass. In any case, it is not possible to exclude the possibility that, if applicable in concrete terms – as far as regards compatibility with the worker’s tasks and the employer’s requirements - smart working may represent a real alternative allowing the worker to continue to work until such time as they are able to exhibit a Green Pass;

*This document contains preliminary comments which may be subject to amendment following publication of the Decree in the Official Gazette.