The Decree Law 21 September 2021, n. 127, "Urgent measures to ensure the safe performance of public and private work by extending the scope of application of the COVID-19 green certification and strengthening the screening system".
Dear all, we are in the midst of a further squeeze that surely and inevitably brings with it further anxieties for most of us. We will not tell you that we must not have anxiety or fear, because it is clear and evident that the moment is very hard and we do not like playing rainbows. However, we can analyze some points together and encourage each other to resist, more, together.
The first point to consider is the duration of the Green Pass obligation provisions (we will call it that but legally it is defined as the COVID-19 Green Certificate) in the workplace: it will start on October 15 and its deadline is set in a very blatant, reaffirmed manner. several times in the text: "no later than December 31, 2021, deadline for the end of the state of emergency".
It is not our intention to inject optimism because we can still expect everything, but we take into account the fact that, instead of tying the provisions to a hypothetical "continuation of the state of emergency", here not only a date is put but it is clearly identified as "Deadline for ending the state of emergency" nor are any forecasts of possible extensions included. Therefore, whatever the system press publishes, currently nothing suggests extensions in this sense and in any case, regardless, this text and its legal provisions will lose effect on 31/12/2021.
This means that we need to have this time horizon in mind, at least for the moment, and better manage the 2 and a half months that separate us. We can do it! However, in our opinion, this definition relating to the date of 31/12 remains indicative.
It could be that we have reached the final squeeze and that there is very little to be able to "breathe" (not to see the end of all this crap, okay, but at least to see some light in the clouds). So, now is not the time to give up!
We remind you that the only verification method is the usual official app of the Ministry of Health, Verification C19, which technically does not allow the verifier to access other data than your name and surname, date of birth and green light (or blue depending on whether the Grenn Pass is valid for Italy or for Europe).
NB: this applies to all categories except for the school sector, which also uses a system called SIDI which we will talk about in another article and which also makes clear the deadline of the gp.
The fact remains that the employer cannot ask for anything about the vaccination status or impose swabs to enter the workplace and everything published so far on the protection of personal data continues to be valid, therefore do not accept any request to that effect and continue to defend yourself from any attempts, appealing to the law on the protection of privacy as well as to the clarifications received in recent months by the Guarantor himself, who explained how the employer cannot come into possession of the worker's vaccination data and any other data concerning his state of health. This point is important, we contest the Green Pass from the ground up both as an idea and as a norm, but within the norm itself, every different application must be opposed with absolute firmness.
We now come to the part of the text that most concerns the working aspect:
Public sector (Article 1 paragraph 6)
"3. The personnel referred to in paragraph 1, in the event that they communicate that they are not in possession of the COVID-19 green certification or if they do not have the aforementioned certification at the time of accessing the workplace (...), they are considered unjustified absent until upon presentation of the aforementioned certification and, in any case, no later than 31 December 2021, term of termination of the state of emergency, without disciplinary consequences and with the right to retain the employment relationship. For the days of unjustified absence referred to in the first period, no remuneration or other remuneration or emolument, however denominated, is due. "
Private sector (Article 3 paragraph 6)
"6. The workers referred to in paragraph 1, in the event that they communicate that they are not in possession of the COVID-19 green certification or if they do not have the aforementioned certification at the time of access to the workplace, (...), are considered absent unjustified until the presentation of the aforementioned certification and, in any case, no later than 31 December 2021, term of termination of the state of emergency, without disciplinary consequences and with the right to retain the employment relationship. For the days of unjustified absence, no salary or other remuneration or emolument, however called, is due. "
For both public and private sectors, it is specified that there are no disciplinary consequences and the employment relationship is maintained. This means that these unjustified absences cannot lead to dismissal for just cause or demotion or other "punishments" and any other application, must be firmly opposed. In this regard, there are already favorable sentences for suspensions or dismissals that have not respected the procedural legislation and here it will be necessary to be firm on the point.
What happens if I don't have the Green Pass? Am I suspended? Sanctioned?
No, but you cannot enter the workplace and your absence is unpaid. It is no longer expected (as it was in the draft) lsuspension from the employment relationship, except in a specific case that exclusively concerns companies with fewer than 15 employees who made use of a temporary contract for the replacement of the absent worker: in this case, after 5 days of consecutive absence, the company can suspend the worker for a maximum of 10 days, which can be extended only once, if it uses a replacement of the worker:
Companies with fewer than fifteen employees (Art. 3 paragraph 7) "7. For companies with fewer than fifteen employees, after the fifth day of unjustified absence referred to in paragraph 6, the employer of work can suspend the worker for the duration corresponding to that of the employment contract stipulated for the replacement, in any case for a period not exceeding ten days, renewable for once, and no later than the aforementioned deadline of 31 December 2021. "
Therefore, maximum 20 days.
The sanctions node
Paragraphs 4 and 5 of this decree-law are of greater interest to employers.
"4. The employers referred to in paragraph 1 are required to verify compliance with the provisions referred to in paragraphs 1 and 2. For i workers referred to in paragraph 2, verification of compliance with the requirements referred to in paragraph 1, as well as by the subjects referred to in first period, is also carried out by the respective employers. "
"5. The employers referred to in paragraph 1, shall define, by October 15, 2021, the operating procedures for the organization of the checks referred to in paragraph 4, including on a sample basis, providing priority, where possible, that such checks are carried out at the moment of access to the workplace, and identify with a formal act the persons in charge of ascertaining the violations of the obligations referred to in paragraphs 1 and 2. The verifications of the COVID-19 green certifications are carried out in the manner indicated by the President's decree of the Council of Ministers
adopted pursuant to article 9, paragraph 10. "
What happens if the green pass is not verified? The answer is in paragraph 9 always of Articles 1 and 3, and here we must go back to Decree Law 25 March 2020, n. 19, Art. 4 paragraphs 1, 3, 5, 9 to which the text refers; from there we report the following:
"Art. 4. Sanctions and controls 1. Unless the fact constitutes a crime, failure to comply with the measures (.....) is punished with the administrative sanction of the payment of a sum from 400 to 3.000 euros and the contravention of penalties are not applied provided for by article 650 of the criminal code or by any other provision of law conferring powers for health reasons, referred to in article 3, paragraph 3. 5. In the event of repeated violation of the same provision, the administrative sanction is doubled and the accessory is applied to the maximum extent. 9. The Prefect, informing the Minister of the Interior in advance, ensures the execution of the measures by making use of the Police Forces and, where necessary, of the Armed Forces, having consulted the competent territorial commands. (...) ».
We then read, for employees, that:
«For the violations referred to in paragraph 7, the administrative sanction provided for by paragraph 1 of the aforementioned article 4 of decree-law no. 19 of 2020 is established in euros from 600 to 1.500 "
Paragraph 7 reads as follows:
«7. The access of personnel to the workplaces referred to in paragraph 1 in violation of the obligations referred to in paragraphs 1 and 2, is punished with the sanction referred to in paragraph 8 and the disciplinary consequences according to their respective regulations remain unaffected. "
Therefore the employee risks a sanction ranging from € 600 to € 1.500 with possible disciplinary consequences if foreseen, while the employer risks a sanction from € 400 to € 3.000.
It remains absurd how we can first say that the employer is sanctioned if he does not check possession of the Green Pass, inserting after the control plan can provide that these also take place on a sample basis: in fact, paragraph 5 of Articles 1 and 3, both for the public and private, provides for the possibility of random checks but it is not seen how this provision can coexist peacefully with the penalties described above in the event that employees without a Green Pass are found within the company, on the occasion of checks of the FF.OO (Police Forces). a simple example? A company decides to sample only 50 employees out of 200 total (legitimate according to the decree) but upon the arrival of the Police Force and consequent verification of even just a person without a Green Pass, would the employer be sanctioned? How can they prove that it has not checked on a sample basis as per Art. 3 paragraph 5? Do you understand the total nonsense?
For the moment we wanted to underline these aspects, of course we leave it to each of you to evaluate their repercussions, we do not like to give in to compromises but this is about survival and it is obvious and obvious that not everyone will be able to afford to stay two months on "non-working holidays. paid "; therefore we remind you that the quick swabs remain a possibility to obtain the Green Pass, that the "controlled" prices have been reconfirmed and that the unjustified absence is foreseen only on the days in which you do not have the Green Pass (I can not have it today and have it again tomorrow morning). The situation is potentially explosive for companies, we hope that they realize the absurdity of these regulations and the difficulty that this government and not their employees are causing them.
Note that it is evident that all this pushes once again towards a "class" struggle: what one wants to achieve with these crazy and useless norms is a war between the people; it is up to us to try not to foment it and use the loopholes to our advantage but also making it clear, where possible, that the person responsible for the inconvenience that will follow is the one who conceived these laws and not us, that the absurdities are conceived by others and not by us ; let us not tire of highlighting how these provisions are completely useless for the purposes of protecting public health but remain exclusively punitive towards the population, in every sense.
Having said that, we encourage you once again not to give up, perhaps, perhaps, we begin to glimpse the light at the end of the tunnel, and in any case this is the only way we can follow to defend our right to life: to resist in every way and at any cost.
NOTE 1: the Green Pass, where required, must be verified according to the provisions of Prime Ministerial Decree of 17 June 2021, also authorized by the privacy guarantor. Any different request is to be considered illegitimate and illegal, such as the preventive collection of vaccination certificates or QR codes. The employer or his delegate must check daily the possession of the Green Pass for each worker or sample. We recommend that you carefully monitor the provisions of your employer by reporting illegal requests to the privacy guarantor. This discretion attributed by the decree will certainly provoke free interpretation and forcing of our rights.
NOTE 2: in this article we have not dealt with all the Law Decree 21 September 2021, n. 127, we will do it in the next hours or days, but we invite you to read the Art. 2, "Use of COVID-19 green certifications by magistrates in judicial offices", Art. 5, "Duration of COVID-19 green certifications" and Art. 4, "Urgent measures for the administration of rapid antigen tests"