The right of employees who are parents with children under 14 and of “vulnerable” employees to work remotely is soon to be extended. The Senate Budget Committee has approved an amendment to the bill to convert Italian Decree-Law No. 145/2023, which extends this right to 31 March 2024.
As is well known, remote working was introduced by Italian Law No. 81/2017 and is defined by Article 18 as “a different way of performing the employment relationship characterised by the absence of specific time or place constraints”. The work is performed partly inside the company premises and partly outside without a fixed location, within the limits of the maximum daily and weekly working hours.
The ordinary legislative framework for remote working requires that the worker can work remotely provided that both parties agree by means of a written agreement.
This legislation, however, does not establish any obligation on the employer to guarantee the employee the opportunity to carry out their work remotely. In this regard, Italian Law no. 197/2022 (also known as the “2023 Budget Law”) as subsequently amended, provided that for so-called “vulnerable workers” the employer must ensure, until 31 December 2023, the possibility of performing work remotely without the need to sign the related agreement and provided, however, that remote working is compatible with the work performed.
A worker is defined as “vulnerable” on the basis of an assessment by an occupational doctor. They are considered to be “vulnerable” as they are more exposed to the risk of infection by the SARS-CoV-2 virus, due to their age or risks deriving from immunodepression, from oncological diseases or from undergoing lifesaving treatment or in any case from comorbidities that may give rise to greater risk, as ascertained by the occupational doctor.
The same right was then also extended to so-called “super vulnerable” workers, as defined by Italian Ministerial Decree of 4 February 2022, and also to workers with children under 14 years of age.
It should be clarified that employers are required to ensure that “super vulnerable” workers work remotely, even if this means assigning them to tasks other than those of the same category or area of classification without any change to pay.
In conclusion, the right to work remotely, although arising under different legal provisions, concerns the following categories:
In relation to the most recent extension, although the amendment only refers to workers with children under 14, the effect of the extension of the deadline, as formulated, should also apply to vulnerable workers as certified by the occupational doctor. In fact, the provision that has been extended (namely Article 90, paragraph 1, of Italian Decree-Law no. 34/2020) refers to both categories.
The conditions to which this right is subject remain unchanged:
Finally, it should be noted that, at the date of writing “super vulnerable” workers remain excluded from the extension. For this category of people, in fact, the amendment that provided for the extension of the right to work remotely until 30 June 2024 was not approved.
However, it is still possible that the provision will also be extended for this category of workers. Moreover, these workers already have reinforced protection (compared to working parents and the “vulnerable”): they can ask for and obtain the right to work remotely, including through the assignment to other tasks included in the same category or area of classification, without any reduction in pay. In contrast, for other categories, the right is conditional on the work being provided being compatible with remote working. In any event, the mandatory communication of agile work on the ClicLavoro ministerial portal is due within ordinary deadlines, i.e., within five days from the start of working remotely.