Green Pass Obligation in Italian workplaces

published on 23 September 2021 | reading time approx. 3 minutes

Such obligation will apply to all premises where a work performance is carried out: companies, shops, professional firms and even private houses, to which a worker has to access in order to carry out his/her work, whether he/she is a household employee, a babysitter or a craftsman. This obligation will not only apply to employees, but also to self-employed workers (freelancers), occasional collaborators, consultants, owners of sole proprietorships, employees/collaborators of third-party contractors, leased workers, trainees, interns, agents and even volunteers, as expressly provided for by the Decree.

The only workers excluded from the obligation to show the Green Pass for access to their workplaces will be those exempted from vaccination on the basis of a proper medical certification, issued on the basis of criteria defined by the Ministry of Health.

The regulations in force for schools, healthcare and RSA operators remain unchanged.

The Green Pass' checks will have to be carried out by employers, who, by 15 October, will have to define operational policies / regulations indicating at least:

1. the locations where the controls will be carried out;
2. the time periods in which the checks will be carried out;
3. the persons in charge of carrying out the controls; and
4. the procedures in place in the event of absence of the Green Certification or refusal to show it.

The checks shall be carried out, as a matter of priority, at the access to the workplace but may be carried out on a random basis also during the working day.

Similarly, employers shall formalize, in a specific written document, the appointment of one or more persons in charge of verifying the validity of the Green Pass: these persons may be employees of the company (e.g. receptionists) or external persons (e.g. security officers).  The appointment letter shall contain the necessary instructions concerning the verification activity, which may be accompanied by a proper training course.

Such controllers will also be able to ask those who intend to enter company's premises to show an identity document in order to verify the authenticity and validity of their Green Pass.

Although the Decree does not clarify this point, the Italian Data Protection Authority has already clarified that it will not be possible to ask the workers for a copy of their Green Pass to be archived: indeed, the activity of verifying the Certifications cannot imply – in any way – the collection of the workers' data. The persons in charge of the verification activities must then transmit to the competent Prefecture the acts relating to any ascertained breaches.

In particular, employers and principals will have to carry out such checks in relation to both their own employees and any external individuals who carry out a working performance at their premises (including, as mentioned above, self-employed workers, leased workers or personnel who carry out their work under a service agreement).

In short, all companies, regardless of their size, and all principals will need to ensure that anyone entering their premises to work is in possession of a valid Green Pass. At the time of the check, workers who are not in possession of the Green Pass will not be allowed to enter the workplace and will be considered unjustifiably absent by their employer, with no disciplinary consequences but with no right to salary or any other remuneration or compensation.

The return to service will be subject to the presentation of a valid Green Certification. In any case, workers without a Green Pass cannot be considered unjustified absent beyond 31 December 2021 and have the right to keep their jobs: they cannot be subject to disciplinary sanctions of any kind. Access to company premises in violation of the obligation to show the Green Pass will be punished with an administrative sanction ranging from 600 Euro to 1,500 Euro: this sanction may be further increased in the case of counterfeiting the Green Certification. It should be noted that workers who enter workplaces without a Green Pass, for example by evading controls, will also be subject to disciplinary action by the employer.

Employers who do not carry out such controls and do not implement the correct verification procedures will be subject to a sanction of between 400 Euro and 1,000 Euro, which could be doubled in the event of repeated violations. Moreover, in the light of the purpose of the Decree to ensure the health and safety of workers, it cannot be excluded that non-compliant employers may be further exposed to sanctions under the relevant health and safety legislation.

Companies with fewer than 15 employees are subject to the general rules, explained above, but with some exceptions. Indeed, in these cases, after the fifth day of unjustified absence due to lack of Green Pass, the employer may suspend the employee for the duration corresponding to the one of the fixed-term employment contract entered into to replace the latter, but for a period not exceeding 10 days, renewable only once, and not beyond the aforementioned deadline of 31 December 2021.

Finally, it is important to underline that the Decree does not explicitly provide for the use of smart-working as an alternative measure to unjustified absence/suspension. However, the Government's line seems to be clear: the lack of Green Pass cannot be transformed into an employee's right to work remotely. In any case, in the event that, for company's needs, the employer were to ask the employee to work remotely, the Green Pass would not be required: the Certificate is not needed to perform the work, but only to enter the workplace.

With regard to this delicate issue, it will however be essential to assess several aspects, including, in particular, whether the employer has already implemented – as of 15 October 2021 – a policy governing the return of its personnel to the company's premises and, above all, whether other workers with the same (or similar) tasks than those of the employee without the Green Certificate will be able to continue working remotely after the aforementioned date or not.