With the failure to extend the right to smart working for fragile workers and for parents of children under 14 – announced by the Minister of Labor, Andrea Orlando in the Dl Aid bis, but not contained in the text licensed by the council of ministers -, in the private sector for these two categories of workers since last July 31 the protection of the law has ceased. They must therefore re-enter the presence. In companies that have signed a company agreement with the trade union representatives that governs agile work, these workers will have to return according to the procedures set out in the agreements.
Other companies will have to re-enter being able to count on the protection ensured by Legislative Decree 105 of 2022 (article 4 letter b): public and private employers who enter into agreements for the execution of work in an agile mode must give “priority” to requests formulated by female workers and workers with children up to twelve years of age, or without any age limit in the case of children with disabilities (pursuant to article 3, paragraph 3, of law 104 of 1992), or to requests of workers with disabilities in a situation of ascertained seriousness (article 4, paragraph 1, of law 104 of 1992) or who are caregivers. In these cases, the worker or worker who requests to benefit from agile work cannot be sanctioned, demoted, fired, transferred or subjected to any other organizational measure that has negative effects on the working conditions.
“But be careful, this is a priority – explains Arturo Maresca, full professor of labor law at the La Sapienza University of Rome -. Basically, if a certain percentage of recourse to agile work is envisaged in a company, priority is recognized for these specific categories of workers. It is a right of precedence to be exercised in the presence of limitations, but there is no longer a right to agile work as it was until July 31, by virtue of the extensions of Article 90 of Legislative Decree 34 of 2020, provided that such modality was compatible with the performance “.
Moreover, also on the exercise of the right to smart working for the frail and workers with children under the age of 14, two different lines of interpretation emerged, among those who interpreted it as a 100% right to remote work – even if not expressly provided for by the legislation – and who as a 100% right to perform the work in an agile mode (therefore partly remotely and partly in presence).
Although Minister Orlando had undertaken to insert the rule in the Aid Bis decree – announcing it in a press release – the extension did not pass due to economic coverage problems raised by the Rgs, since in cases where it is not possible to use the fragile worker to smart working (for example, because tasks are required to be performed in presence), the absence is equivalent to a hospitalization with costs for the State. For this reason, even if Minister Orlando has undertaken to present an amendment when converting the Dl Aid Bis into law, a new extension seems to have few chances (unless cover is found), also in consideration of the fact that the decree will have an “armored” path in the two branches of parliament to be fired in September.