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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France

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The first French law on teleworking was adopted on 22 March 2012. It was subsequently modified by an ordinance dated 22 September 2017. Today, three articles of the labour code cover the implementation and the functioning of teleworking (articles L. 1222-9 to L. 1222-11). In addition, two national collective agreements were concluded between employers' representatives and trade unions in 2005[1] and 2020.[2]

The definitions of teleworking given by article L. 1222-9 and by the agreement of 19 July 2005 provide that the rules on teleworking only apply to employees with an employment contract. These rules do not apply to self-employed workers.


[1] National collective agreement on Teleworking – July 19, 2005

[2] National collective agreement for a successful implementation of teleworking – November 26, 2020

Last updated on 21/09/2021

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Italy

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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.

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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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France

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Employers must ensure the protection of their company’s data but also of employees’ data.

According to article L. 1222-10 of the French labour code, the employer must inform the teleworking employee of the company's rules regarding data protection and any restrictions on the use of computer equipment or tools. Once informed, the employee must respect these rules.

The collective national agreement of 26 November 2020, provides more details in article 3.1.4. It is the employer's responsibility to take necessary measures to protect the personal data of a teleworking employee and the data of anyone else the employee processes during their activity, in compliance with the GDPR of 27 April 2016 and the rulings of the National Commission for Technology and Civil Liberties (the CNIL).

The CNIL said in its 12 November 2020 Q&A on teleworking that employers are responsible for the security of their company's personal data, including when they are stored on terminals over which they do not have physical or legal control (eg, employee's personal computer) but whose use they have authorised to access the company's IT resources.

The National Agreement of 26 November 2020 recommends three practices:

  • the establishment of minimum instructions to be respected in teleworking, and the communication of this document to all employees;
  • providing employees with a list of communication and collaborative work tools appropriate for teleworking, which guarantee the confidentiality of discussions and shared data; and
  • the possibility of setting up protocols that guarantee confidentiality and authentication of the recipient server for all communications.
Last updated on 21/09/2021

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Italy

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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.

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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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France

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The rules for monitoring employees do not differ between teleworkers and office workers. Thus, like any employee, teleworkers must be informed in advance of the methods and techniques used to monitor his or her activity (article L. 1222-3 of the labour code).

The implementation of a device allowing the control of the employee's working time must be justified by the nature of the task to be performed and proportionate to the purpose (National Agreement of 26 November 2020).

The CNIL said in a Q/A on 12 November 2020 that the devices used to monitor employees’ activity must not be aimed at trapping employees and cannot lead to permanent surveillance of employees. Thus, audio or video devices, permanent screen-sharing or keyloggers must not be implemented.

If the employer exercises excessive surveillance on his employee, it may receive a financial penalty.

Finally, the CNIL advises employers to prioritise monitoring the completion of missions by setting objectives rather than monitoring the working time or the daily activity of employees.

Last updated on 21/09/2021

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Italy

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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.

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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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France

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French law has no provision for this.

It is, therefore, necessary to refer to the two national agreements of 2005 and 2020. These agreements stipulate that the costs incurred by the employee in the performance of his or her employment contract are borne by the employer. This obligation also applies to teleworkers. However, the national agreement of 2020 sets a few conditions for this coverage: the prior validation of the employer, the expense must be incurred for the needs of the professional activity of the employee and in the interests of the company.

The organisation responsible for collecting social security contributions (URSSAF) has issued a list of expenses that must be covered by the employer. These costs include ink cartridges, paper, telephone and internet subscriptions, electricity, heating, a proportion of rent in certain cases (see below) and home insurance.

The terms and conditions for covering business expenses (maximum amount, the procedure to follow, etc.) may be defined unilaterally by the employer, by mutual agreement between the employee and the employer, or by a collective agreement between the employer and the company's unions. Article 3.1.5 of the national agreement of 2020 and the Ministry of Labour recommend doing everything possible to reach an agreement between the employer and the unions.

If teleworking becomes permanent and the employee no longer has an office on the company's premises, the employer must pay a home occupation allowance.[3]

As for the use of the employee's personal equipment, the principle is that the employer must provide the employee with a computer for teleworking. However, if the employee agrees, they can use their personal equipment (article 7 of the national agreement of 19 July 2005).


[3] Cass. Soc, 14 septembre 2016, n°14-21.893

Last updated on 21/09/2021

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Italy

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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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France

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Cross-border remote working can accentuate some of the problems caused by teleworking or create new ones.

Among the existing problems, the loss of social ties is accentuated if the teleworker decides to work from another country. Indeed, the employee abroad will never physically see his colleagues, which will create a distance between the employee working from abroad and other employees.

Similarly, employers must ensure the protection of the health and safety of workers (article L. 4121-1 labour code). This is a difficult obligation to meet in teleworking, especially because employers do not have access to remote employees’ workplaces. It is even more difficult if the employee works from another country because the sanitary, electrical and other standards are different and potentially less protective than French rules.

As for social security law, in principle, the employee depends on the social security system of the country where they work. The employee can only continue to benefit from the French social security system if they are in a secondment situation. Moreover, this is only a temporary solution because the secondment implies a temporary mission. The employer will therefore have to register the employee with the social security system of the country where they are working, which will cause problems in terms of social contributions.

Another question that may arise is whether an employer should accept a work stoppage prescribed by a foreign doctor.

Finally, another problem that may arise is the employee's right to disconnect. Indeed, the employer and the employee must agree on a time slot during which the employee can not be contacted to respect his private life as much as possible.[4] It can be difficult to establish a time slot that suits both the employee and the employer in case of major time zone discrepancies.


[4] National agreement of November 26, 2020

Last updated on 21/09/2021

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Italy

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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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France

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Teleworkers have the same rights as employees who work from a company's premises (article L. 1222-9 III of the Labor Code).

Employers cannot modify employees’ remuneration without obtaining agreement.[5] This rule also applies to teleworkers.

In some countries such as the United States, employers can adjust the remuneration of teleworking employees to the cost of living in the employee's place of residence. This practice is not prohibited in France but the employer must be careful in doing so as it could constitute discrimination based on the place of residence, which is prohibited by the labour code[6]if it is not justified by objective elements. 

However, employers can withdraw a few benefits from teleworking employees. Indeed, even if the Ministry of Labor says in a Q&A that the telecommuting employee must receive lunch vouchers like other employees, some jurisdictions believe that the employer can stop paying these vouchers to teleworkers because they are not in a comparable situation to employees who work from a company's premises.[7]

As for transportation costs, the employer must cover half of the cost of the transportation pass used to travel to the office and to return home from the office (article L. 3261-2 of the labour code). If the employee does not have to travel to work during the month, the employer does not have to pay transportation costs.


[5] Cass. Soc, 18 oct. 2006, n°05-41.644

[6] Article L. 1132-1 Labour code

[7]TJ Nanterre, 10 mars 2021, n° 20/09616

 

Last updated on 21/09/2021

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Italy

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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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France

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Employers can require that their employees are vaccinated only if the vaccination is made mandatory by the French Public Health Code.

In France, vaccination against covid-19 has not been made mandatory (except for health professionals). Therefore, French employers cannot force their employees to be vaccinated. However, they can recommend it to their employees without forcing them (please note that due to the Law of 5 August 2021, employees are entitled to leave to attend covid-19 vaccination appointments).

Please note that a law was passed by Parliament on 5 August 2021 and states:

  1. To make access to certain places, establishments or events conditional upon the presentation of either a negative PCR test, or proof of vaccination status concerning covid-19, or a certificate of recovery following covid-19 infection.

This would only cover the following activities:

  • recreational activities;
  • bars and restaurants (except company restaurants), including terraces;
  • department stores and shopping centres by decision of the Prefect of the district in the event of risks of contamination under conditions guaranteeing access to essential shops and transport;
  • seminars and trade fairs;
  • public transport (trains, buses, planes) for long journeys; and
  • hospitals, homes for the elderly and retirement homes for companions, visitors and patients receiving care (except in medical emergencies).

In those specific cases, from 30 August 2021, an employer undertaking the above activities may ask their employees to present one of these documents, including proof of vaccination status. If an employee is unable to present such documents and chose, in agreement with their employer, to not use paid holidays, the employer can suspend the employee’s contract, on the same day. This suspension, which can lead to an interruption of salary, ends as soon as the employee produces the required proof.

If the suspension goes beyond three working days, the employer shall invite the employee to a meeting to attempt to rectify the situation, including the possibility of temporarily reassigning the employee to another position within the company not subject to this obligation.

  1. Mandatory vaccination for health professionals, including those working in an occupational health service according to article L.4622-1 of the labour code.

The health professionals listed in article 12 of the law of 5 August 2021 (doctors, nurses, doctors working in occupational health services, osteopaths etc) must be vaccinated as of 9 August 2021, unless there is a medical contraindication or a certificate of recovery can be presented.

Please note that the law provides for a transition period as follows:

  • up to and including 14 September, the staff concerned may present a negative test  that is less than 72 hours old (RT-PCR screening test, antigen test or self-test carried out under the supervision of a health professional) if they are not vaccinated;
  • between 15 September and 15 October inclusive, when an employee has received the first dose of vaccine, he or she may continue to work provided that he or she can present a negative test result; and
  • from 16 October 2021, they must present proof of the complete vaccination schedule.

This obligation does not apply to people who perform occasional tasks. The Ministry of Labour defines “occasional tasks” as a very brief and non-recurring intervention that is not linked to the normal and permanent activity of the company. Workers who carry out these tasks are not integrated into the workgroup and their activity is not public-facing.

This may include, for example, the intervention of a delivery company or an urgent repair.

On the other hand, the following are not occasional tasks: carrying out heavy work in a company (eg, renovation of a building) or cleaning services, because of their recurrent nature.

When carrying out an occasional task, the workers concerned must ensure that they comply with social distancing rules.

Employees who have not presented one of these documents can no longer work. Thus, when an employer finds that an employee can no longer carry out their work, the employee must be informed without delay of the consequences of this prohibition, as well as the means to rectify the situation. A dialogue between the employee and employer to discuss ways of rectifying this situation is encouraged.  An employee who is prohibited from working may, with the employer's agreement, use days of rest or paid leave. Otherwise, their employment contract will be suspended.

The suspension of the contract, which leads to the interruption of salary, ends as soon as the employee fulfils the conditions necessary to continue working.

When the employer or the regional health agency finds that a health professional has not been able to carry out their role for more than 30 days, it informs the national council of the order to which they belong.

Please note that, according to the law of 5 August 2021, the employer must inform the new works council (CSE) of measures taken to implement any obligations to verify the vaccination of health professionals or the health passes of employees who come under the aforementioned sectors.

Last updated on 21/09/2021

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Italy

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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).

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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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France

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For employees for whom vaccination is not mandatory, employers cannot make entry to the workplace conditional on vaccination, nor can they threaten to dismiss the employee if they have not had the vaccine.

If an employer makes the return to the company premises conditional on vaccination, they are violating the employees’ privacy and medical confidentiality, and employees may freely refuse it. In case of dismissal, it could be judged null and void since it may violate the employee's privacy and medical secrecy.

On the other hand, for employees working in the above-mentioned establishments (bars, restaurants, department stores, shopping centres etc.), the employer may make the return of the employee to work conditional on the presentation of a health pass (either a negative PCR test, or proof of vaccination status concerning covid-19, or a certificate of recovery following a covid-19 contamination).

Finally, for health professionals, there will be no risk for the employer. The employer will be able to condition the return to the premises on proof of vaccination status.

Last updated on 21/09/2021

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Italy

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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.

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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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France

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Please see above (questions 8 and 9) regarding the workplaces and specific industries concerned by making the access to the workplace conditional on individuals having received a Covid-19 vaccination.

Last updated on 21/09/2021

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Italy

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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.

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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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France

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Moreover, regarding the processing of data relating to an employee’s vaccination, the CNIL has not yet issued a directive on the specific subject of the processing of employee vaccination data by employers. Because of their sensitive nature, data relating to employee health are subject to special legal protection: they are in principle prohibited from being processed. Employers, therefore, may not keep a list of vaccinated employees, or disclose the names of those who do not wish to be vaccinated.

In fact, according to the CNIL, "because of their sensitive nature, data relating to a person's health are subject to special legal protection: they are in principle prohibited from being processed. In order to be processed, its use must necessarily fall within one of the exceptions provided for by the GDPR, thus guaranteeing a balance between the desire to ensure the security of individuals and respect for their rights and fundamental freedoms. Moreover, their sensitivity justifies that they be processed under very strong conditions of security and confidentiality and only by those who are authorized to do so.

The exceptions that can be used in the context of work are limited and can generally be based on either :

  • the need for the employer to process this data to meet its obligations in terms of labour law, social security and social protection: this is the case for the processing of reports by employees,
  • the need for a health professional to process such data for the purposes of preventive or occupational medicine, (health) assessment of the worker's capacity to work, medical diagnoses etc.

For these reasons, employers who would like to initiate any steps aimed at ascertaining the state of health of their employees must rely on the occupational health services.

The CNIL points out that only competent health personnel (in particular occupational medicine) may collect, implement and access any medical forms or questionnaires from employees/agents containing data relating to their health or information relating in particular to their family situation, their living conditions or their possible movements"

However, we find these exceptions difficult to apply in the context of covid-19.

For employees subject to mandatory vaccination, the law allows the employer, or regional health agency if applicable, to store the result of the check on the proof of vaccination status.

Please note that the employer may not keep the proof of vaccination. In other words, the employer may not keep the QR code, only the “Yes/No” result of the test. Keeping the result is limited in time (currently until 15 November 2021).

The information thus collected is personal data subject to the General Data Protection Regulation (GDPR).

Last updated on 21/09/2021

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Italy

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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.

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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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France

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The health and safety considerations for employers in respect of remote workers are the following:

  • Modes of work time control or workload regulation;
  • Determination of the time slots during which the employer can usually contact the remote worker to respect the right to disconnect and the right to privacy;
  • Organise an annual meeting to discuss working conditions and workload; and
  • Evaluate professional risks, in particular those linked to the employee's distance from the colleagues and regulating the use of digital tools.
Last updated on 21/09/2021

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Italy

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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.

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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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France

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The pandemic does not strictly speaking have an impact on employers' obligations towards workers' health and safety beyond the physical workplace. But the National Interprofessional Agreement on remote status was renegotiated on 26 November 2020 and strongly raised awareness among employers on those issues to:

  • Communicate within the work community;
  • Adapt the managerial practices: trust and definition of clear objectives;
  • Train managers and employees;
  • Maintain social ties and prevent employees from isolation: it is useful to plan group time, to set up remote communication means to facilitate exchanges, to assist in case of difficulties with computer tools, etc; and
  • Make available to all employees, including those working from home, relevant contacts so that employees in vulnerable situations can use them.
Last updated on 21/09/2021

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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.

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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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France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

No, the legal and conventional provisions on health and safety at work apply to both mobile workers and workers based primarily at home. It must be taken into account that the employer cannot have complete control over the place where teleworking is carried out and the environment, which is part of the private sphere. This implies an occupational risk assessment adapted to the case of mobile workers and the case of workers based primarily at home.

Last updated on 21/09/2021

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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.

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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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France

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  • at Proskauer Rose

Employers are liable within the limits of their obligations (see question 12). As long as employers respect these obligations, in case of litigation, it will be up to the employee to demonstrate that the deterioration of their health is related to the employer's failure to respect its obligations.

Last updated on 21/09/2021

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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.

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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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France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

During the pandemic, employers were able to carry out reorganisations involving collective redundancies for economic reasons (subject to justifying a real and serious economic reason as defined by article L.1233-3 of the labour code).

They were also able to negotiate collective performance agreements to meet the needs linked to the operation of the company or to preserve or develop employment by adjusting the working hours of employees, remuneration, and determining the conditions of professional or geographical mobility within the company.

Employers may also have to negotiate or renegotiate agreements or charters on remote status or review their organisation by developing a co-working space, different from the company’s premises, on a regular or occasional basis or in case of exceptional circumstances or force majeure.

Last updated on 21/09/2021

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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).

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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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France

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  • at Proskauer Rose

In general, employees and new works council members have a right to alert and withdraw from any situation which they have reasonable grounds to believe presents a serious and imminent danger to their life or health (article L.4131-1 and L.4121-2 of the labour code).

Apart from these actions, the new works council or the unions will always have the ability to report to the employer any malfunction affecting the entitlements and rights of remote workers.

In any case, please note that employees who wish to terminate their status as a remote worker will have priority to assume resume a non-teleworking position that corresponds to their professional qualifications and skills and to inform the employer of the availability of any such position (article L.1222-10 of the labour code).

Last updated on 21/09/2021

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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.

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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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France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

Remote-working is implemented within a collective agreement negotiated with the unions or, failing that, within a charter drawn up by the employer after the opinion of the new works council if it exists (article L.1222-9 of the labour code).

The collective agreement or, failing that, the charter drawn up by the employer specifies:

  • The conditions for switching to remote status, in particular in case of a pollution episode, and the conditions for returning to performance of the employment contract without remote working;
  • The terms of acceptance by the employee of the conditions of implementation of remote status;
  • The modes of control of the working time or regulation of the workload;
  • The determination of the time slots during which the employer can usually contact the remote worker; and
  • The modes of access to a telework organisation for disabled workers.

The way of negotiation seems to be prioritised by the legislature. Apart from those mandatory clauses, the social partners have every interest in being a force of proposals, which will be accepted or refused by the employer. If the unions refuse to sign the agreement, the employer may provide for these measures in the framework of a charter, which it may implement after the opinion of the new works council (non-binding opinion).

Finally, in the absence of a collective agreement or charter, when the employee and the employer agree to telework, they may formalise their agreement by any means.

Last updated on 21/09/2021

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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.

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Last updated on 21/09/2021