The Green Pass in Italy. A requirement to work in the pandemic

Author: Prof. Luca Calcaterra, Università degli Studi Suor Orsola Benincasa, Naples, Italy

The Green Pass, as is well known, has been created to certify that a person does not (or should not) pose any threat of contagion to other people. In Italy it is ruled under art. 9 of Law Decree of April 22^nd 2021, n. 52, which considers the hypothesis of someone who

1. has been vaccinated (Green Pass valid after 15 days from the first shot until the second shot of vaccine and then for a period of 12 months after the second shot);
2. has undergone a lateral swab (Green Pass valid 48 hours)
3. has undergone a molecular swab (Green Pass valid 72 hours)
4. has recovered from Covid-19 (Green Pass valid 6 months)
5. has recovered from Covid-19, contracted after the first shot of vaccine (Green Pass valid 12 months).

Since October 15^th 2021, under Italian law the Green Pass is mandatory to access the workplace (see Law Decree of September 21^st 2021, no. 127). This rule is valid for the Public Administration (Article 1 of Decree 127/2021) as well as for private employers (Article 3 of the same Decree 127) and it has not come into force without a fierce debate, both political and technical. The debate was fuelled by the fact that in no other Member States the Green Pass has so far been required as a general condition for working in all sectors.

Before the decree came into force, part of the interpreters tried to support the idea that the employer would have the right and the duty to apply for vaccination to his employees, basically due to his obligation to ensure the health and safety of his employees in the workplace under Article 2087 of the Italian civil code. The same duty the employer has towards any other worker and, in general, towards any other person who enters the working space due to contractual provisions. This idea complies with other provisions of the legislation on health and safety (Decree no. 81/2008, Articles 20 and art. 279), under which the employer is obliged to make vaccines available to workers who are not immune to biological agents with which they can come into contact by working. But this interpretation found an obstacle in Article 32 of the Italian Constitution, under which a health treatment can be imposed as mandatory only if required by a specific legal provision.

The deadlock has persuaded the legislator to intervene explicitly. The Law Decree no. 127/2021 (not yet converted into law) introduces new provisions aimed at ensuring safety at the workplace through an extension of the cases in which the Green Pass is mandatory. The new Law provides that, from 15 October 2021 until 31 December 2021, employees must all have a Green Pass to access the workplace. The Decree extends the scope of the obligation previously referred only to health professionals, school and university staff (including the administration staff), and anyone working in the assisted health residences.

The new regulation applies to all employees (including agency workers, trainees and volunteers) as well as to self-employed workers who access the workplace. Only health reasons, demonstrated by an appropriate medical certificate, restrict the scope of the obligation. In such cases, the possibility for alternative measures (e.g., remote working) should be checked with the company doctor.

Strict guidelines about how the employer should check the possession of the Green Pass are provided by Article 13 of the Decree of the President of the Council of Ministers (DPCM hereinafter) of June 17^th 2021 (annex B, paragraph 4), under which it is mandatory the use of the “VerificaC19” App installed on a mobile device. More recently a DPCM of October 12^th 2021 has modified DPCM of June 17^th 2021, providing new IT tools in order to allow private (and public) employers a daily and automated verification of the possession of the Green Pass.

As a consequence of the workers’ obligation to have a Green Pass to access the work place from October 15^th 2021, the employer must establish the rules on how the checks will be carried out, preferably at the entrance to the work place (to be drafted and recorded and communicated to the employees).

Moreover, the employer must identify, through a formal act, who (employee/s or third company) will be in charge of the checks and will challenge possible violations. Should the workers be employed by third parties (e.g., suppliers), the checks will be carried out both by the formal employer and by the holder   responsible for the work place. Freelance and self-employed must be also checked at the entrance.

Workers who communicate to the employer that they do not possess a Green Pass or are found not to have one cannot enter the work place. Employees are then considered to be absent without leave (AWOL) until they get a Green Pass. This is the rule until December 31^st 2021. As long as they are AWOL, they are not entitled to any remuneration but they retain the job and are not liable to disciplinary sanctions.

On the contrary, employees who access the work place (e.g., eluding the control of the employer or using a fake or altered pass) in violation of their obligation to have a green pass, are subject to the disciplinary measures set out by the National Collective Bargaining Agreement applied and to the administrative sanctions provided for under the law.

The employers who do not carry out the checks as provided by the law or do not define, within 15 October 2021, the rules to carry out the checks are subject to an administrative sanction from Euro 400 to Euro 1.000. The employees who access the workplace without a Green Pass and the employer whose working space has been entered by employees without a Green Pass are both subject to an administrative sanction of from Euro 600 to Euro 1.500 for each employee for each day of violation.

The opportunity of such measures is challenged, particularly by far right and far left parties, and by some organizations, but also by groups of citizens. Nevertheless the need for a Green Pass to enter the work place has highly incremented the diffusion of controls against Covid-19 infections and convinced an increasing number of citizens to ask for a vaccine. This has reduced the contagion until today and will hopefully help Italy to better face the challenge of a new wave of contagion this winter.