Italy’s covid “green pass” an administrative headache for employers
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Green Pass
John van der Luit-Drummond is editor of International Employment Lawyer

Considered to be some of the strictest anti-covid regulations worldwide, from 15 October, approximately 23 million private and public sector workers across Italy will be barred from their places of work, without pay, unless they can produce a clean covid passport.

The so-called green pass, called certificazione verde in Italy, is an extension of the EU’s digital covid certificate confirming an individual has received two doses of a covid-19 vaccine, has recovered from coronavirus, or tested negative for infection in the previous 48 hours.

Since August, the pass has been mandatory for those wanting to eat and drink inside restaurants or bars and for most other leisure activities within Italy. The move followed similar rules introduced in France over the summer, but amid predictions the winter months and the more contagious delta variant could lead to a surge of new cases, Italy’s government is now going one step further.

Italy has reported approximately 4.6 million infections and more than 130,000 deaths due to covid-19 since the pandemic reached the country in February 2020. The European Centre for Disease and Control reports that more than 76% of Italians aged 12 years and above have now been fully vaccinated against the virus. The government is aiming to increase the vaccination rate to 82% by mid-October and sees the more stringent green pass measures as a way of achieving this.

“We are extending the obligation of the green pass to the entire world of work, public and private, and we are doing so for two essential reasons: to make these places safer and to make our vaccination campaign even stronger,” Roberto Speranza, Italy’s health minister, told journalists on 16 September.

Except for those who can prove a medical exemption to the vaccine, the new decree, published on 21 September 2021, has consequences for workers and employers across the country. “While this manoeuvre by the Italian government falls short of a statutory duty to get the jab, the – desired – outcome is practically the same. You cannot go about your normal daily life unless you are fully vaccinated, given the need to produce proof of same at every turn,” says Sharon Reilly, co-founder and managing partner of Reilly & Tesoro.

For workers who refuse to show their pass, the law is clear: “If an employee does not have the green pass, the employer may consider the employee to be absent without leave and, therefore, not entitled to receive their salary until they acquire a green pass or, in any case, until 31 December 2021,” explains Emanuela Nespoli, a partner at Toffoletto De Luca Tamajo e Soci. “In addition, any employee accessing the workplace without the green pass may also be subject to an administrative sanction ranging from €600 to €1,500.”

Impact on business

Unlike previous mandates handed down by the government, such as its decree approving the mandatory inoculation of healthcare workers, the new measures – and the consequences of failing to apply them – apply to all workplaces.

“The obligation concerns all places where work is carried out: companies, public entities, shops, etc. And all workers, regardless of the type of contract covering their work. Indeed, not only are employees subject to this obligation, but also independent contractors, consultants, trainers, and even volunteers,” says Nespoli.

“Companies, both small and large, will have the burden of ensuring that anyone who accesses their premises for work [has] the green pass, in addition to preparing and implementing all the necessary procedures to check employees,” she says, adding that employers that fail to comply face fines from €400 to €1,000 – with the penalties doubling if the violations are repeated.

While employers will undoubtedly face challenges monitoring employee passes, the new law does not contain a strict liability clause, Reilly explains. “If an employee does not have a green pass, albeit the company has been diligent in carrying out regular random checks, the employer will not incur penalties if they have the correct compliance procedures in place. On the other hand, employees entering the workplace in bad faith, without a green pass, will be subject to disciplinary action and a fine. Whether this is a sufficient deterrent will become clear soon post-15 October.”

There is little doubt that the new rules will give rise to heightened friction and possibly even litigation in the workplace

According to the law, green passes must be verified via the VerificaC19 App, which scans a QR code, checking the validity of the pass as well as the personal details of the holder. “It is recommended that such scrutiny is carried out at the entrance to the workplace,” says Reilly. “The person responsible for the checks must be formally appointed by power of attorney and in our view, this can be more than one person – either an internal or external appointment.”

Implementation of the new rules may have some unintended repercussions on businesses, Reilly adds. “Employers will find themselves with organisational headaches. To take just a few examples: an employee who works machinery and doesn’t turn up for his shift due to an unjustified absence will trigger a delay in starting or stopping the machine. Or an employee whose unjustified absence from meeting with a client leads to the loss of a client. The burning question on employers’ lips will be: can we take disciplinary action, given the direct result of the absence? Or, alternatively, a civil action for damages?”

Reilly continues: “What about the scenario where an employee who has no intention of getting a green pass and will thus be absent from work without pay from 15 October to 31 December? What can the employer do in practice to ensure the smooth running of the business? Can they hire a substitute in the meantime? Yes, but only if the business has less than 15 employees. Can the worker who has been suspended without pay until 31 December be made redundant? The jury is out on this!”

Remote working

Following the relative success of remote working globally, an obvious question workers without a green pass will raise is whether they can simply work from home until the end of the year. “The answer is no, there is no automatic entitlement,” says Reilly. “It’s up to the parties to come to an agreement if they so wish.”

However, Reilly offers a word of caution to employers that may acquiesce to such requests: “Circumventing the deterrent – the emergency legislation – by letting anti-vaxxers work from home is a dangerous precedent and flies in the face of what the rules are there for: to get the population vaccinated and the economy back on its feet as well as taking the pressure off the national health service.”

There are also questions around how the new measures will be enforced as well as concerns that the data privacy implications of the decree have yet to be fully addressed by the government. “The new provisions are still fresh and further clarifications should be issued to allow employers and employees to be compliant with these obligations,” says Nespoli. “In any case, much debate and criticism have spread in public opinion and possible claims may arise on this matter.”

Although polling by SWG Research suggests a majority of Italians back the measures, there have been several protests against the green pass, including in Rome and Milan, that have turned violent.

Meanwhile, Matteo Salvini, the leader of the right-wing Lega, has broken with members of his own party to criticise the restrictions. “The position of the League is clear: we are for defending the health of citizens, including in the workplace. But you can’t think of extending the green pass obligation to 60 million Italians,” he said earlier this month.

“There has been a notable increase in vaccination uptake since the new law was passed and hopefully this trend will continue,” offers Reilly. “However, there is little doubt that the new rules will give rise to heightened friction and possibly even litigation in the workplace.”