Green pass: the obligation of green certifications in the working environments

Allen & Overy LLP

Allen & Overy LLP

The measures on the obligation to possess Green Certification Covid-19 for employees in the public and private sectors taking effect from 15 October 2021.

On 15 October 2021, for employees in the public and private sectors, the obligation to possess and exhibit the Green Certification Covid-19 (or green pass) in order to access the places of work, provided for by Law Decree No. 127 of 21 September 2021, published in the Official Gazette No. 226 of 21 September 2021, become effective.

After the clarification referred to in article 3 of Law Decree No. 139 of 8 October 2021 regarding the obligation, for workers in the public and private sectors, to provide in advance, and at the request of the employer motivated by specific organizational needs aimed at ensuring effective work planning, notice of non-possession of a green pass, the President of the Council of Ministers signed two new decrees aimed at further clarifying the procedures for carrying out checks.

The first of the two decrees adopts the guidelines on controls for public administrations while the second, amending the Decree of the President of the Council of Ministers of 17 June 2021, containing «Implementing provisions of article 9, paragraph 10, of the Decree Law of 22 April 2021, No. 52, containing "Urgent measures for the gradual resumption of economic and social activities in compliance with the need to contain the spread of the COVID-19 epidemic"», dictates the general and implementing provisions of the obligations introduced with the Law Decree No. 127 of 2021, valid both in the public and private sectors.

Below, the main news regarding the procedures for verifying the green pass in the private sector:

Verification tools: The new paragraph 10 of article 13 of the Decree of the President of the Council of Ministers of 17 June 2021, provides that, for the purpose of verifying the possession of the green pass by employees, companies will be able to use specific functions that will provide daily automated verification. The two modalities envisaged for the private sector are:

  • the integration of a QR code reading and verification system in the physical access control systems, including those for detecting attendance or temperature; and
  • the simultaneous interaction between the INPS (Istituto Nazionale Previdenza Sociale) institutional portal and the national platform-DGC, for employers with more than 50 employees.

It is specified that, if a subject does not have a valid COVID-19 green certificate upon the outcome of the above-mentioned checks, he or she has the right to request that the process is carried out again at the moment of access to the workplace using the VerificationC19 mobile application.

Furthermore, despite being in possession of the legal conditions required for the issuance of the green pass, if the employee does not have it at the time of verification, for example because he is waiting for it to be released or awaiting an update, the employee can access the company premises by exhibiting paper or digital documents that certify the existence of the conditions necessary for the green pass to be issued.

Data processing: The new paragraph 7 of article 15 of the Decree of the President of the Council of Ministers of 17 June 2021, provides that the persons in charge of the verifications must be identified as data controllers of the data of the controlled persons and that the personnel involved in the verification process are promptly informed by the employer, through specific information, about the processing of data.

In addition, in the event that the checks are carried out using the QR code tool, the new paragraph 13 of article 13 of the Decree of the President of the Council of Ministers of 17 June 2021 establishes the explicit prohibition of keeping the two-dimensional barcode of each green pass that is subject to verification, as well as to extract, consult, record or otherwise process, for purposes other than those of verification, the information detected by reading the QR codes and the information provided following the checks.

Although not exhaustive, the latter clarifications are particularly useful for employers in order to comply with the obligation referred to in paragraph 5 of article 9-septies of Law Decree No. 52 of 22 April 2021, introduced by Law Decree No. 127 of 21 September 2021, that is, through the drafting of ad hoc internal lines, the definition of the organisation’s operating procedures regarding the controls to be followed in the company, thus avoiding the imposition of an administrative sanction between EUR 400 and EUR 1,000 as referred to in article 9-septies p. 9 of the Law Decree No. 52 of 22 April 2021.

Finally, we remind you that, as required by paragraph 6 of article 9-septies of Law Decree No. 52 of 22 April 2021, introduced by Law Decree No. 127 of 21 September 2021, from 15 October 2021, employees who do not possess a green pass or are deprived of it at the time of accessing the workplace, will be considered unjustifiably absent and, albeit in the absence of disciplinary sanctions and without prejudice to the right to keep their job, from the first day of absence, they will not be paid their salary or any other type of emolument, however named; while for workers who will be at the workplace despite not having a green pass, the administrative sanction referred to in paragraph 9 of article 9-septies of the Law Decree No. 52 of 22 April 2021 will be applicable, i.e. the payment of a sum of money between EUR 600 and EUR 1,500.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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