Update: Decree-Law No. 18 of March 17, 2020, which is the subject of this article, was published in the Official Gazette of March 17, 2020, No. 70 under the title: "Measures to strengthen the National Health Service and provide economic support for families, workers and businesses related to the epidemiological emergency from COVID-19."
We confirm, based on the official text, all the analysis and considerations expressed in the article published below.
As announced, the Council of Ministers at its March 16 session approved a decree-law (dubbed "Cure Italy"), the second after the March 2 decree-law, which contains additional extraordinary measures to support the economy and families related to the epidemiological emergency from COVID-19
For obvious reasons of necessity and urgency, the instrument of the decree law was chosen, which comes into effect immediately after publication in the Official Gazette and will then be converted into law and presumably amended by Parliament. The text, aided by the emergency situation, certainly needs adjustments and refinements that could take place in the House, as well as timely operational and enforcement guidance to make the many facilities introduced concrete.
Regarding the entire decree, we dwell here strictly on the benefits introduced in favor of persons who assist family members with disabilities and those in favor of the same persons with disabilities who are employees.
Work permits (Law 104/1992)
A specific article (Article 24) would exceptionally expand--for the months of March and April 2020--the work permits provided by Article 33 of Law 104/1992.
In fact, the literal text is rather ambiguous and lends itself to different readings; the article reads verbatim, "The number of days of monthly paid leave covered by notional contribution under Article 33, paragraph 3, of Law No. 104 of February 5, 1992, is increased by an additional total of 12 days usable in March and April 2020."
The first most favorable reading is: under the normal regime, leave days are 3 monthly; under the new decree they will be 15 monthly. This adds up to 12 monthly.
The second, less favorable reading and conditioned by that "total" is that for March and April, 12 total furlough days are added. Which would mean that the total leave is: 3 (already scheduled in March) + 3 (already scheduled in April) + 12 (to be distributed between March and April) = 18 total leave days between March and April.
Which interpretation is correct is for the Legislature alone to say.
Update: Subsequent guidance from the Office for Disability Policies, INPS (Message 1281 and Circular 45) and the Ministry of Labor-which we report on in other articles-have adopted the following interpretation: 3 (already scheduled in March) + 3 (already scheduled in April) + 12 (to be distributed between March and April) = 18 total days of leave between March and April.
Beyond these aspects, it should be said that the text of the decree refers to the permits provided for in Paragraph 3 of Article 33 of Law 104/1992: these are the three-day (not hourly permits) and are those granted to parents and family members of persons with verified and documented severe disabilities; those permits are extended by Paragraph 6 of the same Article 33 to workers with verified severe disabilities as well.
Update: INPS in its message 1281 of 20/03/2020 clarified that the extension of leave applies only to workers who assist persons with severe disabilities and not also to workers with severe disabilities. Later in Circular No. 45, it corrected that first version by specifying that the extension of permits applies to both workers who assist persons with severe disabilities and workers with severe disabilities.
In the coming days there will also likely be operational guidance from INPS and the Civil Service if not also from the Ministry of Labor.
Certainly the extension of permits is easier for those who are already authorized and already use them.
While waiting for operational guidance, we suggest already agreeing on the use with the company or administration on which you depend, thus adding the extra 12 days to the 3 already used or scheduled. When making the request, remember to cite "Article 24, paragraph 1 of Decree Law No. 18 of March 17, 2020." Alternatively, you can wait for operational guidance to come from INPS (for private individuals) or the Civil Service Department or your own administration for public employees.
Other rules regarding salary, social security coverage, single point of contact, maximum distance from the assisted person's home, etc. remain unchanged.
Other regulations in favor of workers with disabilities
Another novelty that may be of considerable impact on workers with disabilities is found within the article devoted to "urgent measures for the protection of the active surveillance period of workers" (Article 26). That article expands some provisions already present in the March 2 decree law. It responds to the unique situation of workers who are in that "active surveillance" situation, what is more simply referred to as "quarantine," that is, cases in which a person is isolated at home for having been in contact with CODIV-19 infected individuals.
These individuals cannot work even though they are not technically on sick leave. The combination of the two decrees - the new one and the one of March 2 - equates this condition with hospitalization, thus a state assimilated to illness and as such paid. At the same time-and this is equally relevant-the absence does not count toward comporto, that is, that period of sick leave beyond which one is no longer entitled to job retention and can be dismissed for excess morbidity (illness).
In this framework, the same status (hospitalization) is recognized until the end of April, regardless of the condition of "active surveillance," also to public and private employees in possession of the recognition of disability with connotation of seriousness pursuant to Article 3, paragraph 3, of Law No. 104 of February 5, 1992, as well as to workers in possession of certification "issued by the competent medical-legal bodies," attesting to a condition of risk resulting from immunodepression or outcomes of oncological diseases or the performance of related life-saving therapies even if they are not in possession of the certification of disability with connotation of seriousness (paragraph 1 of Article 3 is enough).
Again, there are application aspects to be clarified. The most delicate one is undoubtedly on the exact identification of the "competent forensic medical bodies" called upon to issue the attestations envisaged by the Legislature. The most consistent reading would like them to be the forensic medical services of the ASLs although from an operational and timing point of view this raises quite a few concerns.
Simpler, however, appears to be the application for workers with certification of disability with connotation of severity who could access the new opportunity simply by notifying their employer. However, the latter will have to have operational guidance on how to communicate the absence and obtain compensation.
Parental leave for parents
Foreword useful for possible further study: the system of different leaves (different in terms of conditions of access, purpose, opportunity, remuneration) is based on the current text of Legislative Decree 151/2001. In particular, for child care and education, we usually refer to the leaves provided in Article 32 (Parental Leave) and 33 (Extension of Disability Leave).
For the remainder of the year 2020, a new leave formula is introduced (Article 23 - private - Article 25 - public) for parents (including custodial), an alternative to the leaves we mentioned above (Article 32 and 33): 15 paid monthly days at 50% (instead of 30% of other formulas).
The new leave is usually granted in the case of children up to the age of 12; in the case of severely disabled persons regardless of age as long as they are enrolled in schools of all levels or housed in day care centers of an assisted living nature.
The leave is granted alternately to both parents, for a combined total of fifteen days per month, and is subject to the condition that there is no other parent in the household who is a beneficiary of income support tools in case of suspension or termination of employment or another unemployed or non-working parent.
Again, application guidance for applying for the new leave is still lacking.
A similar facility is also provided for working parents who are exclusively enrolled in the Separate Management Fund or self-employed workers registered with INPS. They are entitled to take a specific leave for which an allowance is recognized that partially compensates for work not done.
It is just worth pointing out that all these benefits are not extended to other than parent/child relationships such as: spouse, brother/sister, child/parent.
As an alternative to these labor benefits, the decree provides (until the end of the year) for the payment of a bonus for the purchase of babysitting services in the maximum total limit of 600 euros disbursed on application through the "family booklet." INPS will provide operational guidance and monitor spending. In case this exceeds the planned allocation INPS will notify the denial of applications received (of those in excess). Also this bonus is limited to parents and not other degrees of kinship.
Right to agile work
In recent weeks, terms such as "agile work" or "smart working" have gained widespread popularity, despite the fact that they were already the subject of elaboration in recent years and even relatively recent regulatory regulation (in particular Law No. 81, May 22, 2017, Art. 18/23)
So-called "agile work," and thus the flexible articulation in time and place of employment in this period, takes on a meaning with different implications: it is useful to physically remove people from their usual workplaces to prevent the spread of contagion. This basically means, wherever possible, doing one's work at home.
A specific article (Article 39) of the new decree provides that on an exceptional basis (until the end of April), employees with severe disabilities (Article 3, Paragraph 3, Law 104/1992) or who have a severely disabled person in their household are entitled to perform work in agile mode "unless this is compatible with the characteristics of the service."
As can be easily guessed, this is a rather volatile right and in any case limited to situations where it is actually possible to perform one's duties remotely. A text that, not marginally, is a harbinger of litigation since the assessment of that "compatibility" is rather discretionary.
Having said that on the basis of this indication, one can certainly apply for the application of "agile work" where the prerequisites are deemed to be met.
There is more uncertainty, however, in providing advice in the case of denial, if not initiating litigation with uncertain timing and outcomes.
Closure of day care centers
There has been much discussion in recent weeks about what was the preferable choice on so-called "day care centers" or more properly semi-residential centers: to close them on a par with schools or not?
On the one hand there is an increased risk of contagion, and on the other hand there is a care burden that perhaps most families would not be able to cope with for long.
The decree, in addition to the broader labor concessions outlined above, intervenes on the point (Article 47).
The activities of all semi-residential social welfare, social-educational, multi-purpose, social-occupational, health and social-health centers for people with disabilities are suspended. We note that they are practically all except for outpatient extensive rehabilitation centers and the like.
The Local Health Authority, may, in agreement with the managing bodies of day care centers (but only those social and health care centers) activate "non-deferrable" interventions in favor of people with disabilities with high need for health support,as far as the type of services and the organization of the facilities themselves allow compliance with the planned containment measures.
What are the "non-deferrable" interventions? The standard does not say, thus leaving discretion to ASLs.
The provision also enshrines the principle that for the duration of the emergency, absences from center activities, regardless of their number, are not cause for dismissal or exclusion from them.
In addition to the employment benefits mentioned above, the same article on day care centers adds an element: absence from the workplace by one of the cohabiting parents of a person with a disability cannot constitute just cause for termination of the employment contract (Article 2119 of the Civil Code), provided that it is communicated in advance and is motivated by the inability to care for the person with a disability as a result of the suspension of day care center activities.
Home care services
The decree, albeit timidly attempts to address (Article 48), albeit with distinctions and leaving room for administrations, a situation arising from the suspension of educational and schooling services and social and welfare activities in day care centers for the elderly and persons with disabilities
This is considered a civil protection emergency resulting in a state of need. In this scenario, the decree provides that public administrations provide, "taking into account the available personnel" already employed in such services, even if they are employed by entities operating under an agreement, concession or contract, services in individual home-based forms. Alternatively, those services can be rendered either remotely or in compliance with health guidelines in the same places where services are normally carried out but without recreating aggregation and thus "assemblages."
Those services can be carried out according to priorities identified by the competent administration, through co-planning with the managing entities, employing the same operators and ordinary funds allocated for this purpose, "under the same insurance conditions as hitherto provided, even in derogation of any contractual, conventional, concessionary clauses, adopting specific protocols that define all the necessary measures to ensure maximum protection of the health of operators and users."
In essence, the government expects that every effort will be made to continue to provide care or support, home and otherwise, as long as the guidelines for containing the infection are met.