Protection of frail workers in light of the changing position of the Inps

As much as it is evident how restrictions are timidly giving way to a normality that is struggling to want to return, the issue of frail workers and their just protection turns out to be decidedly topical, perhaps also by virtue of a provision for "new aggregations" in the workplace. Already Article 26 of Decree Law 18/2020 had regulated, with many difficulties, the absence (one would say necessitated) of such workers from the workplace. The recent INPS message No. 1126 of 2022 allows us a reconstruction, always current, of the institutions referred to workers with serious diseases. 

The definition of 'frail worker' is extrapolated, first of all, from the Joint Circular No. 13 of September 4, 2020 from the Ministries of Labor and Health where it is stated, with reference to the current epidemiological emergency, that "the concept of frailty should be identified in those conditions of the health status of the worker/employee with respect to pre-existing diseases that could lead, in case of infection, to a more serious and inauspicious outcome: it may evolve on the basis of new scientific knowledge, both epidemiological and clinical".

In the same circular, the Ministry clarifies how the mere age requirement is not a sufficient element to define a legally tenable state of frailty. In particular, it would not appear detectable any automatism between the worker's age and health characteristics and the possible condition of frailty. In this context, greater frailty in the higher age groups of the population should be understood in conjunction with the presence of comorbidities that may integrate a condition of greater risk.

For frail workers therefore, from the earliest beginnings of the Covid epidemic, the Legislature has provided specific protection at the Article 26 c. 2 of Decree Law No. 18 of March 17, 2020 By stipulating that for employees in the private and public sectors in possession of the recognition of disability with connotation of seriousness (Article 3, paragraph 3, Law 104/1992) or in possession of the certification of the medical-legal bodies of the ASLs attesting to the condition of risk for immunodepression, outcomes of oncological diseases or the performance of life-saving therapies, the entire period of absence from duty duly certified, until the initial deadline of July 31, 2020, is equated with hospitalization.

Not only that. The periods in question do not produce effects for the purposes of counting the period of comporto governed by the specific contracts of reference. This provision appears to be tautological, to say the least, since it is clear that the concept of "absence" of the cited art. 26 in question cannot be confused with "illness" (i.e., the presence of a temporary absolute inability to perform work). Nothing, on the other hand, appears to have changed with regard to the maximum indemnifiable limit for social security protection according to the specific discipline.

From July 31, 2020, as is well known, it comes to the October 15, 2020, through Law 126/2020 converting Decree Law 104/2020 (so-called "August Decree"). The subsequent Decree Law 41/2021 (Supports Decree), converted into Law 69/2021, then extended the protection until June 30, 2021, Always where the work cannot be performed in agile work mode Pursuant to paragraph 2-bis of Article 26.

Afterwards Article 9 of Decree Law 105/2021, making amendments to Paragraph 2-bis of Article 26 of Decree-Law No. 18/2020, innovated the provisions under discussion, introducing the possibility that smart-working performance is also possible through the assignment of frail employees to different tasks, included in the same category or area of classification, according to the definition resulting from collective bargaining, or in carrying out specific professional training activities "remotely."

Subsequently, Article 2-ter of Decree Law No. 111 of August 6, 2021, inserted, upon conversion, by Law No. 133 of September 24, 2021, has Further extended until December 31, 2021 The deadline for the recognition of protection for "fragile" workers.

Lastly, in this succession of emergency regulations, decree law 221/2021 extended protection until February 28, 2022. As if this were not enough, when converting the decree into law, paragraph 3-bis was added to Article 17 as an extension of the "provisions of Article 26, paragraph 2, of Decree-Law No. 18 of March 17, 2020, converted, with amendments, by Law No. 27 of April 24, 2020," and with that coming, at least for now, to the March 31, 2022.