New Ways of Working

Explore and keep track of key legal and compliance considerations for multinational employers as new ways of working become increasingly embedded as the pandemic begins to recede. Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

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Italy

  • at Toffoletto De Luca Tamajo

Italian employment law provides – within the framework of employment relationships – for two different ways of working outside the company premises: Teleworking (that is, “Telelavoro”) and Smart Working (that is, “Lavoro Agile”). Neither of them entails a new type of employment contract, but simply a different way of performing the work.

In particular, Teleworking is a way of regularly carrying out work outside the company premises but in a fixed workplace, which is normally at the employee’s home. In the private sector, it is regulated by: a) the European Framework Agreement on Telework dated 16 July 2002; b) the National Collective Bargaining Agreement dated 9 June 2004 for the transposition of the Framework Agreement (hereinafter “CBA 9 June 2004”) and c) the National collective bargaining agreements.

Instead, Smart Working is a way of carrying out work partly inside the company premises and partly outside, without any fixed location. It is regulated by articles 18 - 24 of the Law no. 81/2017.  Italian employment law defines Smart Working as an agreement between the parties without any constraint in terms of working hours or workplace, along with the possible use of technology to enable the work activity to be performed. Therefore, Smart Working, differently from Teleworking, is not constrained to any specific place and work can be performed both inside or outside company premises - with no fixed location.

During the Covid-19 pandemic the Italian Government chose Smart Working as the “main way of working” to fight the spread of the virus and, in some cases, recommended working remotely whenever possible. Considering, the ample diffusion of this way of working, any reference to remote working below shall be understood as Smart Working.

In particular, since March 2020 employers have been allowed to implement Smart Working unilaterally (i.e., without signing any agreement with the employee). Moreover, multiple provisions have been issued during this emergency period specifying the categories of workers that are entitled to work remotely (Smart Working) or have priority to access that way of working, should it be possible for the duties assigned to be performed remotely and depending on the company’s need. Indeed, those categories mainly refer to “vulnerable workers”, such as severely disabled workers and those in possession of specific certificates attesting a risk condition deriving from immunodepression, oncological pathologies or life-saving therapies and parents of disabled children.

Independent contractors or gig economy workers are not included in these specific provisions.

Finally, recently the Italian Government introduced a piece of legislation expressly providing for the right of remote workers to disconnect from IT tools and platforms, without prejudice to the agreements signed and “availability slots” agreed with the employer.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

02. Outline the key data protection risks associated with remote working in your jurisdiction.

02. Outline the key data protection risks associated with remote working in your jurisdiction.

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Italy

  • at Toffoletto De Luca Tamajo

Data security requirements applicable to all employees working at the company premises continue to apply to employees working remotely. The main risks are linked to the transmission of company data outside the company premises, in places not necessarily identified. Therefore, additional data protection precautions should be taken to protect the confidentiality of transmitted data by drafting specific policies.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

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Italy

  • at Toffoletto De Luca Tamajo

Employee monitoring is governed by article 4 of the Law no. 300/1970.

According to this article if tools that potentially enable employee remote monitoring are needed for the performance of work, employers may be able to collect information from them without a trade union agreement or administrative authorisation. However, information collected through those tools can be lawfully used for all purposes connected with employment, including disciplinary reasons, only if: (i) a company policy is in place adequately detailing the expected use of the tools and the nature of possible checks carried out by the employer; and (ii) the above is done in compliance with data protection legislation. 

No specific guidance or legal provisions have been issued for remote working, so employers should firstly ensure that they are able to monitor their employees in compliance with the above rules. Moreover, the individual agreement signed with the employee working remotely needs to include a reference to how the employer will exercise its monitoring power.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

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Italy

  • at Toffoletto De Luca Tamajo

Under Smart Working rules employers are not required to provide any tools for employees, nor pay or reimburse any relevant costs for the same.

However, they must ensure health & safety and that any work tools assigned to the employees are functioning well.  It is recommended that employers have an internal policy regulating the use and custody of electronic equipment and how it can be safeguarded from damage and theft. However, in case of Teleworking (see point 1) the employer is required to pay all the expenses related to the installation and the use of remote working station and tools (desk, chair, wireless connection, telephone, etc.).

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

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Italy

  • at Toffoletto De Luca Tamajo

As a rule, it is not prohibited to work remotely abroad.

However, this could give rise to the following issues:

1) Applicable law: although the employment contract is governed by Italian law (or the law chosen by the parties), the mandatory rules of the place in which the work is carried out could apply, including those on working hours, safety at work, etc.

2) Social security contributions: the general rule is that contributions are paid in the country where the work is carried out. At times, bilateral agreements between countries or within the European Union make exceptions to this general rule if specific requirements are met, providing that in the case of short periods of work abroad, the contributions continue to be paid in the country of origin and not in the country where the work is carried out.

3) Accident at work insurance: Insurance problems could arise in connection with this specific method of working and the employer should verify concretely what kind of coverage exists.

4) Taxation: depending on the period spent working abroad, there is a possible risk of being subject to multiple taxes from different jurisdictions.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

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Italy

  • at Toffoletto De Luca Tamajo

Under Smart Working regulations, employees who work remotely are entitled to receive an overall economic treatment equal to that paid to employees working at the company’s premises. Therefore, generally speaking, employers cannot reduce salaries/benefits of employees working remotely. Nonetheless, recent Italian case law considered it possible for employers to revoke meal tickets from remote workers (except in the case of specific contractual obligations), as it is not part of the normal salary of the employee.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

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Italy

  • at Toffoletto De Luca Tamajo

As a general rule, employers cannot require employees to disclose their vaccination status. On the other hand, according to the current Italian Covid-related legislation, the company’s occupational doctor could decide to consider the vaccine as a condition for working in the office and/or consider unvaccinated employees as unfit or without the necessary requirements for gaining access to the office (without specifying the reason to the employer). In this hypothesis, the employer should verify whether the employee can work remotely or can be assigned to different duties and, if none of the above options are available, the employer may also suspend the employee without remuneration (once he/she has used up the accrued paid leave and holidays). In this respect, recent Italian case law on this matter (Tribunal of Modena of 19 May 2021 and Tribunal of Rome of 27 July 2021) stated that employees have an obligation to actively cooperate with employers in relation to health and safety in the workplace and that a violation of this obligation may entail consequences for the employment relationship, including the employee possibly being exempted from performing the work activity with no remuneration, confirming in such cases the legitimacy of an employee suspension by the employer.

However, in some hypothesis Italian law requires employees to be vaccinated to carry out their activity or requires to have specific certification to enter company’s premises (see answers below).

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

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Italy

  • at Toffoletto De Luca Tamajo

As mentioned above, the company’s occupational doctor can lawfully consider the Covid-19 vaccination as a necessary requirement for entering the workplace. Should employers impose this measure without the intervention of its occupational doctor and prohibit unvaccinated employees from entering the company and work, it may give rise to claims against the employer for demotion and damages.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

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Italy

  • at Toffoletto De Luca Tamajo

Yes. Under the provisions of article 4 of Legislative Decree No. 44/2021, health operators have a legal obligation to be vaccinated against Covid-19 to perform their work.

Moreover, the Italian government passed yesterday (16th September 2021) a new Decree Law - which should be published shortly – providing that from 15th October to 31st December 2021, the so-called Green Pass will be required to access the workplace to all employees of the private and public sector.

The Green Pass is the EU certificate which states that the individual has received two doses of the covid-19 vaccination, has recovered from coronavirus, or has tested negative for covid-19 in the previous 48 hours).

Failure to comply with the obligation to check the Green Passes will entail a penalty from 400 to 1,000 euros.

In case the employees fail to comply with the obligation of having a Green Pass the company has to proceed as follows:

  • if the company has at least 15 employees, it has to immediately suspend the employee without pay, until the employee acquires a Green Pass or in any case until 31 December 2021;
  • for companies with fewer than 15 employees, after five days of failing to present a Green Pass, the employer may suspend the employee for a period not exceeding 10 days.

If the employee accesses the work place without the Green Pass, he/she may also be subject to an administrative sanction ranging from 600 to 1,500 euros.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 06/12/2021

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

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Italy

  • at Toffoletto De Luca Tamajo

Only the company occupational doctor is entitled to process any health data concerning employees, as expressly clarified by the Italian Data Protection Authority (DPA). Circular no. 198 of May 13th, 2021 issued by the Italian Data Protection Authority (“Documento di indirizzo”), referring to the implementation of the voluntary vaccination campaign in the workplace, clarified that “employers shall not be allowed to collect, directly from the employees concerned, through the occupational doctor, other health professionals or health facilities, information on all aspects relating to the vaccination, including whether or not the employee intends to adhere to the campaign, whether or not the vaccine has been administered and other data relating to the employee's health condition”. Moreover, the Italian DPA has recently confirmed this principle in Circular no. 273 of July 22, 2021 (i.e. that employers cannot directly process the data regarding the vaccination of employees), also in order to avoid any kind of direct and indirect discrimination based on an employee’s decision to be vaccinated or not.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 06/12/2021

12. What are the key health and safety considerations for employers in respect of remote workers?

12. What are the key health and safety considerations for employers in respect of remote workers?

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Italy

  • at Toffoletto De Luca Tamajo

Under Smart Working regulations, employees can choose the place in which they perform their work activity. Consequently, employers are not required to verify the safety of any possible place of work but must provide employees with information. In particular, employers have to provide employees and the workers’ safety representative, at least on an annual basis, with a document which indicates the general risks and the connected specific risks linked to Smart Working.

Furthermore, it is highly recommended for employers to organise courses focused on the peculiarities of smart working (especially from an H&S perspective). In any case, employees are required to cooperate in the implementation of safety measures in order to address the risks associated with the performance of work outside the premises of the company.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

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Italy

  • at Toffoletto De Luca Tamajo

As mentioned, employers must implement all the necessary measures in order to protect employee health. This obligation needs to be balanced with the limits set by privacy regulations. During the pandemic, striking this balance has become crucial and harder to apply. In this context the role of the company occupational doctor is fundamental, as he or she is the only person allowed to process employee health data. In particular, the occupational doctor is also in charge of recommending to employers the measures that should be implemented with reference to each employee.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

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Italy

  • at Toffoletto De Luca Tamajo

The two different ways of working outside the company premises: Teleworking (“Telelavoro”) and Smart Working (“Lavoro Agile”) impose different obligations on employers.

As said, employees working remotely under a Smart Working arrangement (not having a predetermined fixed place) must be clearly informed of the specific risks of performing his/her work activity in this way.

Conversely, in the case of Teleworking, employers - in addition to guaranteeing that the work activity is carried out in full compliance with health and safety rules and providing employees with specific information on safety matters – are also allowed to access/inspect the places in which teleworking is carried out by employees in order to verify the correct application of health and safety rules and polices. Consequently, this triggers a great responsibility for employers, also with regard to the overall safety of the employee’s home (e.g. including the electrical system). Moreover, employers must ensure the adoption of measures preventing the isolation of the teleworker from other company employees, such as opportunities to meet regularly with colleagues and to access company information.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

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Italy

  • at Toffoletto De Luca Tamajo

Mental health and wellbeing are also included within the general obligation for employers to safeguard employee health. This is also the case for employees working remotely.

With reference to Smart Working, Italian provisions specify that the technical and organisational measures in place for guaranteeing employee disconnection from IT tools must be provided for within the individual agreement.

While, in case of Teleworking, employers must address measures to prevent isolation of the teleworker from other employees, such as by providing opportunities to meet regularly with colleagues and to access company information.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

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Italy

  • at Toffoletto De Luca Tamajo

During the pandemic and up to 30th June 2021 (and in some circumstances, until 31st December 2021) a dismissal ban was in force under which neither collective nor individual redundancies were possible.

On the other hand, in some cases, employers were able to reach agreements with their employees – mostly executives – for a reduction, or a deferral of the payment of the bonus due.

The main organizational changes that have been largely implemented are linked to (i) the implementation of a new working model base on the remote working and (ii) the massive use of the new social shock absorbers that has been granted by the Italian Government to the employers. Specifically, employers, through the so-called social shock absorbers, could suspend the activity of their employees without paying them and the employees received an indemnity from INPS (the Italian Social Security Body).

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

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Italy

  • at Toffoletto De Luca Tamajo

During the Covid-19 pandemic Unions were ready to make their voices heard in order to guarantee the protection of employees, especially regarding their health and safety.

With reference to smart working, the main tool for unions is the NCBA, which, in fact, is the results of negotiations between Social Parties and can include further protection for employees or an obligation to also inform and consult unions in order to introduce smart working.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

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Italy

  • at Toffoletto De Luca Tamajo

Generally, No. In some cases, National Collective Bargaining Agreements (NCBAs) may provide a specific obligation to inform and consult unions.

Furthermore, in the context of Covid-19 emergency, companies have set up internal committees, formed by a) a representative of the employer b) representatives of the employees (i.e. Works council and Representative of the workers for health and safety “RLS”) and c) the company’s occupational doctor, to periodically monitor the effectiveness of the safety measures implemented by the company and, if necessary, amend or confirm them.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021