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The extension (provided for by the conversion law of the Labor Decree) of the right to agile working for so-called super-fragile workers, i.e. public and private workers suffering from serious chronic pathologies with little clinical compensation and with a particular connotation of severity, expires on 30 September. , specifically identified by the ministerial decree of 4 February 2022.
The protection granted to this particular category of employees is particularly incisive: their right to smart working is not conditioned on the compatibility of the tasks with smart working. Indeed, it is expressly provided for by the law which was extended at the time that the employer ensures the performance of work in an agile manner «also through the assignment to a different task included in the same category or area of classification, as defined by the collective labor agreements in force, without any reduction in the salary received”.
Node of tasks to be carried out remotely
The literal tenor of the provision makes it difficult to impose on these super-fragile workers any temporal limitations on agile working in force in the company. Above all, the hypothesis in which there are no tasks that the worker can carry out remotely is in no way considered, thus leaving the employer in the awkward position of deciding how to proceed in this case. A very different situation from that of two other categories of workers, parents of children under 14 and workers most exposed to the risk of contagion from Covid-19 due to age or immunosuppression resulting from oncological pathologies or from carrying out life-saving therapies or, in any case, from comorbidities (so-called fragile, certified as such by the competent doctor), who enjoy the extension of the right to agile working until 31 December 2023.
The difference is not only in the different expiry date of the extension. For these last two categories, the constraint of job compatibility applies, which authorizes the employer not only (as is obvious) to deny access to smart working in the case of tasks that cannot be remote, but also to support (albeit with some risk of dispute) that smart working is compatible with work activity only within the limits and with the only methods (even temporally limited) established by company regulations and agreements (individual and collective).
Little room for an extension
The greater intensity of protection for the super-fragile (with consequent higher costs borne by the employer) probably explains the different deadline of the extension. The fact is that, barring further extensions, this type of protection will cease from 1 October, with the consequent possibility of being recalled to work in the presence of these workers. Which will not prevent them from possibly obtaining from the competent doctor, if the requisites are met, a certification that makes them fall into the broader category of those most exposed to the risk of contagion (fragile), with the right to flexible working until 31 December, conditional however on job compatibility.