Legal Update: Remote Work in Italy: Where Are We Now? - JD Supra

Summary

[co-author: Claudia Di Biase]

Remote work has been playing a key role in Italy, as everywhere in the world, since the pandemic started. During the height of the pandemic, the Italian government promptly intervened to establish simplified regulations to allow employers to use remote work without worrying too much about formalities and technicalities. While employers must fulfill some (basic) requirements, the current emergency regulation is quite simple and elastic.

[co-author: Claudia Di Biase]

Remote work has been playing a key role in Italy, as everywhere in the world, since the pandemic started. During the height of the pandemic, the Italian government promptly intervened to establish simplified regulations to allow employers to use remote work without worrying too much about formalities and technicalities. While employers must fulfill some (basic) requirements, the current emergency regulation is quite simple and elastic.

Importantly, however, this emergency regulation will end on Wednesday, 31 August 2022 (unless the government changes its position), and employers will need to be prepared when the ordinary legislation that applies to remote work is reinstated.

With this in mind, below, we will clarify what remote work generally means in Italy; what rules and requirements must be complied with under normal circumstances; what changed during the pandemic; and finally, what employers should expect after the emergency period.

What does remote work mean in Italy?

Over the years, the Italian legislature has implemented two different regulations on remote work: the smart working (or, hybrid remote work) regulation and the teleworking regulation. The rules that apply to employees’ work performance are different depending on the type of remote work they do.

Specifically, the smart working (hybrid remote work) regulation applies when employees work partially inside the office and partially outside the office. In contrast, the teleworking regulation applies when employees work from home entirely.

While teleworking has been in place since 2004, smart working or hybrid remote work was only introduced in 2017. However, after 2017 smart working has been more commonly used, as it generally guarantees more flexibility to both employers and employees.

What are the rules and requirements under normal circumstances?

Under normal circumstances, to implement both smart working and teleworking arrangements, the employer and the employee must sign an individual agreement, regulating the employee’s work performance outside the business premises.

The individual agreement, however, includes different information depending on whether smart working (hybrid remote work) or teleworking applies to the employee. Smart working rules don’t have much in common with teleworking rules, which are generally quite strict in comparison:

Working anywhere outside the office vs. working from home

Under a hybrid remote work arrangement, employees could decide to work from anywhere outside the office (unless specific places are excluded in the agreement); whereas, under a teleworking arrangement, employees will have a fixed workplace (usually their home) specifically identified in the agreement, meaning they cannot work from anywhere else.

Working for objectives vs. respecting working time

Employees on a smart working arrangement can work based on the achievement of objectives, meaning that they will not be requested to comply with a specific working time but rather are expected to achieve objectives set by their employer. In contrast, employees on a teleworking arrangement are strictly bound to the working time set up by employers. The employees will therefore be required to work the hours indicated in their employment contracts.

Different health & safety (H&S) obligations

The teleworking regulation is also stricter than the smart working regulation regarding H&S obligations. Under the smart working regulation, employers would be required to simply deliver notice to employees informing them of the risks connected to working outside the office. In contrast, under the teleworking regulation, employers are required to inform and train employees on the risks connected to the performance of work via computer terminals. They are also entitled to check that employees comply with their H&S directions by accessing the employees’ residence (together with the employees’ representatives and relevant authorities).

Working tools

Both regulations provide that employers need to provide working tools unless otherwise agreed with employees. Teleworking rules, however, additionally provide that employers must reimburse the costs derived from teleworking (e.g., internet connection, telephone bills, etc.) to employees or pay them a flat-rate indemnity, which is an obligation that is not present in the smart working rules.

Information to the Labour authorities

Finally, both hybrid remote work and teleworking rules provide that employers must comply with the national mandatory rules governing their communications to the Ministry of Labor. Employers are required to send specific information regarding the remote work agreement (e.g., employee’s personal data, type of agreement signed, termination date if any, etc.) to the Ministry of Labor.

What happened as a result of the pandemic?

As soon as the pandemic started, the Italian legislator introduced a set of simplified rules expressly derogating the smart working regulation. In practice, these rules introduced a new type of remote work, which could be defined as smart “home” working.

As employees were compelled to stay and work from home, employers basically started applying the smart working regulation, as derogated by the emergency legislation, to employees entirely working from their homes.

Consequently, during the pandemic a clear distinction between smart working and teleworking has not really been in place, as the legislature made an effort to simplify the requirements as much as possible by specifically exempting employers from signing individual agreements with employees and by simplifying the information that employers should send to the Ministry of Labor.

What will happen from 1 September 2022?

From Thursday, 1 September 2022, the ordinary rules on smart working and teleworking will return to fully operate under Italian law. The simplified rules on hybrid remote work will no longer be in place.

This means that employers will then be required to (a) enter into individual agreements with employees working partially or entirely from home, (b) apply the specific regulation on hybrid remote work or teleworking depending on the working arrangement chosen, and (c) comply with the mandatory communications, which means to provide full (and not simplified) information to the Ministry of Labor.

Conclusions

As the emergency legislation on remote work will no longer be effective from Thursday, 1 September 2022, and thus the simplified system of rules will no longer be applicable, employers should take the opportunity to consider re-drafting or reviewing their smart working agreement templates. It is important to be ready when the obligation to enter into individual agreements with individual employees is back in place.

Legal Update: Remote Work in Italy: Where Are We Now? - JD Supra
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