Coronavirus in Italy: Consequences for employees and companies

published on 28 February 2020 | reading time approx. 3 minutes

With the rapid outspread of the coronavirus disease, uncommon situations concerning employment relationships have recently arisen. In particular, in these days the situations concerning the management of employment relationships are the most varied and unusual: does the employer have to pay the quarantined employees? Is it possible to be absent from work for fear of infection? Which duties of care are incumbent on the employer? With this article we are trying – as far as possible – to clarify the principal situations that could arise.

Working activity suspended by order of the public authority

With reference to the employees living in the municipalities of the so-called 'red zone' (Bertonico; Casalpusterlengo; Castelgerundo; Castiglione D'Adda; Codogno; Fombio; Maleo; San Fiorano; Somaglia; Terranova dei Passerini; Vo'), the Ministry of Health adopted a Decree, which suspends the performance of all working activities (with exclusion of public utility and essential services to be performed in this area and working activities that can be performed from home). Such suspension has also been extended to employees who carry out their working activities outside the abovementioned municipalities but are their resident inside the red-zone.

This mandatory suspension of the working activities is certainly not attributable to the employer: the employer's obligation to pay salaries and contributions is therefore interrupted.

However, three possible exceptions to this general principle are provided:

Sickness Leave: the concerned employees are not automatically considered to be on sickness leave, as an illness can only be ascertained – with a medical certificate – if flu symptoms are diagnosed.
Should an employee actually be ill, he or she will continue to receive the salary regularly, partly from the employer and partly from the I.N.P.S. (Italian National Social Welfare Institute), as usual in such cases; Holidays/Paid Leaves: it is possible for the employees to use days of holidays and/or days of paid leave accrued, so as to continue to receive their ordinary salary;
Smart Working: in the light of the Decree of the President of Council of Ministers of 25 February 2020, it is possible to carry out the working performance – on an experimental basis until 15 March, 2020 – in smart working (home-office) without any prior written agreements between the Parties, with regards to employers with registered or operational offices in the Regions of Emilia Romagna, Friuli Venezia Giulia, Lombardia, Piemonte, Veneto and Liguria, as well as for employees who are resident or domiciled there and are performing their working activities outside these areas.
In such cases, for the mandatory communications to be sent to the public Authorities, the individual agreements are replaced by a self-certification according to which smart working refers to an employee belonging to one of the areas at risk.

Finally, the Ministry of Labour has not excluded the possible use of the Ordinary Furlough (the so-called 'CIGO'): employers can therefore evaluate, case by case, whether it is reasonable to suspend the production activities and request to the Labour Ministry the granting of the 'CIGO'.

However, the 'CIGO' is not applicable to all companies and all employees (for example, Executives are excluded): moreover, the Ordinary Furlough can reach only 80% of the ordinary salary of the concerned employees and provides for maximum limits, thus implying, especially for employees with higher salaries, significant income reductions.

Quarantined employees

Employees with symptoms attributable to the Coronavirus disease are placed under observation and in this case, since they are absent from work for medical treatment, their absence is regulated according to the ordinary legal and contractual provisions (sickness leave). The same applies to the case of an employee quarantined even if without symptoms but with a medical certificate.

Working activity voluntarily suspended by employers who do not fall within the scope of application of decree

Employers who decide to suspend or limit the working activities for precautionary reasons continue to be obliged to pay the salary due to their employees, whether or not they perform their working activities.

In any case, since it has been made possible to use smart working without any prior written agreements between the Parties, in the event that the employer authorizes the employees not to go to their workplace but, at the same time, requires them to carry out their working activities from home, the latter shall – where possible – comply with this directive.

In this case, two scenarios can occur:

If the employees perform their working activities in smart working, as requested by their employer, they will receive their ordinary salary;
Otherwise, if it would be technically possible to work from home but the employees do not comply with this directive, they have to be considered justified absent but they will not receive their salary (without any prejudice to the use of days of holidays or paid leave days or similar, and save for the cases of sickness leave).

Voluntary absence from work for fear of infection

Except for the cases in which the employer has authorized – if possible – the performance of the working activities from home, the employees who decide voluntarily not to go to work and not to carry out their working activities (e.g. for fear of using the public transport and be infected) will not be entitled to their salaries and such absence could be considered unjustified, with possible consequent disciplinary measures.

In such cases, however, a disciplinary sanction could be considered disproportionated, so we suggest not take disciplinary actions against such employees in the light of the understandable fear for their own health and the health of their family members, limiting the reaction to not paying the relevant salaries for the days of absence.

Such kind of situation should be valuated with caution and on a case-by-case basis, since this absence can probably be considered as not guilty: indeed, the conduct is not entirely irrational, especially in the context of the uncertainty of these days (justified unpaid absence, without disciplinary relevance).

Moreover, in specific cases the employee could consider his decision not to go to work as a real right (when advised by physicians with regards to his/her specific health conditions), eventually implying -according to the National Collective Bargaining Agreement of the relevant sector - the use of days of paid leave for personal reasons or days of paid leave for health reasons.

In any case, it is understood that, if employers do not opt for the suspension of their working activities or does not allow smart-working, the latter will be required to carefully assess the risks to the health and safety of their employees, providing them – whenever the risk assessment shows a concrete risk of infection and on the basis of the indications of the relevant Health and Safety Officer (R.S.P.P.) – with all the necessary personal protective equipment (such as - for example - disposable masks, latex gloves, disinfectants, etc.).