Frail workers' absences from work

"Fragile workers" are defined as employees, public and private, who possess:

• of certification issued by the competent medical-legal bodies, attesting to a risk condition resulting from immunodepression or outcomes of oncological diseases or the performance of related life-saving therapies
• Of the recognition of disability with a connotation of seriousness (Art. 3, Paragraph 3, law 104/1992).

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For workers in frail condition who are particularly at risk in case of infection with the Sars-Covid 19 virus, Article 26 of the d.l. 18 of march 17, 2020 provided specific forms of protection. In particular, Paragraph 2, provided for the assimilation of absence from work to hospitalization. The provision initially provided until April 30, 2020, was subsequently extended until July 31, 2020 by Art. 74 of the d.l. 34/2020 and to October 15, 2020 by Art. 26 of the d.l. 104/2020.

Law Decree 104/2020 also stipulated that, starting Oct. 16 and until Dec. 31, 2020, frail workers can also perform agile work as a rule through:

• assignment to a different task included in the same category or area of classification, as defined by current collective agreements
• The carrying out of specific professional training activities, including remotely. 

Article 1, paragraph 481, of the l. 178/2020 extended the applicability of frail worker protection to the period from January 1, 2021 to February 28, 2021.

Article 15 of Decree Law 41/2021. on measures to support workers in fragile condition, amending Article 26 Decree Law No. 18 of March 17, 2020 and Article 1, Paragraph 481 of Law 178/2020, further extends the time scope of dual protection until June 30, 2021.

The Supports Decree stipulates that until June 30, 2021, Where the work cannot be performed in agile mode pursuant to paragraph 2-bis ....si provides for the protection of equating absence from duty with hospitalization.

Consequently, it is inferred that absence can be considered as hospitalization only if the work performance cannot be performed in agile mode according to the indications of paragraph 2-bis, which it is recalled provides that frail workers can normally perform the work performance in agile mode, including through the assignment to a different task included in the same category or area of classification, as defined by the collective agreements in force, or the performance of specific professional training activities, including remotely.

In practice, it is stipulated that absence from work can be equated with hospitalization in the only cases where the work cannot be performed in agile mode.

L.D. 41/2021 expressly excludes that periods of absence from duty for frail workers can be counted toward the comportment period. Thus, the debated issue that paragraph 2 of Article 26 of Decree Law 18/2020 had not expressly regulated is resolved; however, it should be noted that the Ministry of Labor and Social Policy, in the faq published in March 2020 in commentary to Decree Law No. 18 of March 17, 2020, had already written that the absence of frail workers does not count toward the comporto.

The new extension also expressly states:

1. The prohibition of monetization of unused vacation time due to absence from duty
2. That the periods of absence from work for workers who have the recognition of disability in a serious condition as provided for in Article 3, paragraph 3, of Law No. 104/1992, do not result in a decrease in the amounts paid by INPS as accompaniment allowance for civil disability
3. the applicability of the rules set forth in paragraphs 2 and 2-bis above, including for the period from March 1 to the effective date of the provision. 

Finally, given the inherent nature of the topic at hand, it should be noted that Article 19, Decree Law No. 183 of December 31, 2020, stipulates that simplified smart working can be used until the date of the termination of the state of epidemiological emergency from COVID-19 and in any case no later than April 30, 2021.