Rules on smart working were amended during the parliamentary conversion procedure of Decree Law no.115/2022 (so-called Decreto Aiuti-bis).
With a completely unexpected twist, the provisions that regulated the use of smart working during the pandemic have been reinstated.
Until the end of the year, in fact, companies will be able to resort to smart working even in the absence of individual agreements and to file a simplified communication.
As announced by Minister of Labour Orlando, the right to smart working has also been reintroduced, again until 31 December 2022 for workers who are:
- severely disabled and/or immunocompromised:
- considered to be at risk of contagion by the company doctor;
- parents of children under the age of 14.
Below are the details of the new provisions.
The provision (no longer in force since last 30 June) according to which severely disabled workers or those certified as at risk due to immunodepression or as the outcome of oncological pathologies or ongoing relative life-saving therapies, can normally carry out their work remotely, is reinstated until 31 December 2022. This right is also recognised if smart working is made possible by assigning the worker to a different task within the same category or area of classification or thanks to specific training activities, also remote.
Also reintroduced, again until 31 December 2022, is the right (previously abolished on 31 July) to smart working for those who, based on the company doctor’s assessment–as part of the exceptional health supervision pursuant to Article 83, paragraph 1, of Decree-Law 34/2020–are at greater risk of infection due to age or immunodepression, resulting from oncological diseases or ongoing life-saving therapies or, in any case, co-morbidities This time however, the legislator did not specifically extend the aforementioned provision on health supervision, formally in force until 31 July 2022, creating a not insignificant problem of application.
The right in question is, however, recognised provided that the smart working mode is compatible with the employee’s duties.
The right (which ended on 31 July) to smart working for parents of children under the age of 14 has been reinstated until the end of the year, on condition that the smart working mode is compatible with the employee’s duties and that the other parent does not receive social security benefits or does not work.
SW without agreement
The option for companies to unilaterally impose smart working even in the absence of individual agreements is extended until 31 December 2022. This provision partly nullifies the ‘rush to reach an agreement’ that companies were forced to make over the summer period in anticipation of the expiry (on 31 August 2022) of the emergency regime that seemed destined to end for good. Today, employers can once again choose whether to activate smart working on the basis of a unilateral decision or an agreement with the employees concerned.
Also reintroduced, until the end of the year, is the possibility for companies to communicate only the names of smart workers with an indication of the end date, as well as to comply electronically with communication obligations regarding security.How can this simplification be coordinated with the already ‘simplified’ rules in force since 1 September 2022, according to which -even if there are agreements in place- companies may communicate only the names of smart workers, the start and end dates of services, and the date of signature of the agreement without attaching a copy? In other words, it remains to be understood which application is to be used for communications and when it will actually come into force.
The provisions state that smart workers may also use, again until 31 December 2022, their own IT devices, if these are not provided by their employer.
Di: Avv. Alessia De Concilio e Avv. Stefania Vitiello
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