Extension of the mandatory holding of the green certification COVID -19 in Italy

avv. Pietro Minora

The Italian government has approved the Law Decree no. 127/2021 which extends the mandatory holding of the green certification COVID -19 (so called “Green Pass“) to access private workplaces.

New requirements to obtain the Green Pass

A Green Pass will be issued on occurrence of one of the following:

1. a completed vaccination cycle (in this case the Green Pass is valid for 12 months);
2. recovery from COVID-19 infection (in this case Green Pass is valid for 6 months after the recovery);
3. rapid antigenic or molecular test with negative result for COVID – 19 (in this case the Green Pass is valid for 48 hours).
4. Having received the first dose of the vaccine from at least 14 days (in this case the Green Pass is valid until the second dose);
5. Having received a single dose of vaccine after former COVID – 19 infection (in this case the Green Pass is valid for 12 months);
6. Recovery from COVID-19 after having received the first dose of vaccine or at the end of a completed vaccination cycle (in this case the Green Pass is valid for 12 months);

Obligations

Starting from 15 October 2021 and until 31 December 2021, any workers (i.e. employees, self-employees, consultants, external contractors, temporary workers, professional trainees, volunteers etc.) must hold a Green Pass and show it in order to access to the workplaces.

The above obligation does not apply to workers who cannot receive any Covid-19 vaccines due to medical reasons (as certified by a medical professional).

With regard to the employers, they are obliged to:

• verify the holding of a valid Green Pass by workers who access the workplace;
• by the date of 15 October 2021, adopt suitable procedures to properly carry out the verification referred above ensuring, to the extent it be possible, that the controls are carried out at the point of access to the workplace;
• by the date of 15 October 2021, formally designate the person(s) in charge of the verification about the holding of a valid Green Pass (the “Charged Persons”);
• consider the workers who do not hold a valid Green Pass as “absent without leave” (unexcused absence) until they are able to show a valid Green Pass or, in any case, until 31 December 2021. For each day of unexcused absence, the employer is entitled to withhold the payment of the workers’ wages and any other form of remuneration. In any event, the workers cannot be subject to disciplinary consequences and cannot be fired.

Certain waivers applies to companies with less than fifteen employees.

Verification procedures

The verification of the Green Pass is carried out exclusively using the mobile application so called “Verifica C-19”, which allows only to check the authenticity, validity and integrity of the certification, and to know the identity of the holder, without showing or making available to the employer any of the information on the cause of Green Pass (whether it be due to vaccination or to testing).

The Charged Persons must be appointed through a formal act containing the necessary instructions on how to perform the verification activity.

Data protection aspects

The verification of the Green Pass entails processing of personal data according to the Regulation EU 2016/679 (“GDPR”).

First of all, since the Law Decree requires employers to formally appoint and instruct the persons in charge of the verification of Green Pass, those Charged Persons must also be instructed and authorised by the employer (i.e. the controller) to the processing of personal data necessary for the verification of Green Pass according to Article 29 GDPR or Article 2 – quaterdecies Legislative Decree 196/2003 (Italian Privacy Code).

Furthermore, it should be noted that, according to Article 13(5) of Prime Ministerial Decree of 17 June 2021 – which provides for the procedural indications for the verification – the verification cannot entail the collecting of information of the data subjects (i.e. the workers) for any reason and in any form. In particular, this implies the following:

• The Charged Persons can only verify whether the worker holds the Green Pass or not, without inquiring the background of the Green Pass (e.g. vaccine, negative test, specific health conditions), as provided for by Article 13 of Prime Ministerial Decree of 17 June 2021;
• The duty of verification cannot be discharged by requiring workers to provide a copy of Green Pass to be kept by the employer. Indeed, Green Pass can only be instantly verified and cannot be collected and/or retained for any reason.

Without prejudice to the foregoing, the Charged Persons, provided that they have been properly authorised and instructed by the controller, can require workers to show (without possibility to collect and/or retain it) their ID documents in order to identify them while verifying the holding of the Green Pass (Article 13 of Prime Ministerial Decree of 17 June 2021).

Finally, please note that information on the processing of personal data pursuant to Articles 13 and 14 of the GDPR must be provided to the data subjects before to commence the verification activities (to this end, collective communications to workers can be used).

Fines

Workers who don’t have a Green Pass when entering to the workplace or – in any case – communicate that they have not it, must be suspended from work and compensation but with the right to keep their employment. No others disciplinary sanctions may be applied to workers by employers because of the lack of the Green Pass.

Moreover, an administrative sanction ranging from a minimum of € 600 to a maximum of € 1,500 applies to the workers who enters to the workplace without holding a Green Pass.

An administrative fine ranging from a minimum of EUR 400 to a maximum of EUR 1,000 is applied to the employers who:

• Do not verify that employees entering to the workplace hold a valid Green Pass;
• By the date of 15 October 2021, do not set a proper operating procedure to carry out checks over the holding of Green Pass by workers;
• By the date of 15 October 2021, do not formally identify and appoint the Charged Persons;
• Give access to workplaces to workers not in possession of the Green Pass;

In case of repeated infringements of these provisions, the administrative penalty is doubled.

The employer and/or workers will be allowed to pay a sum equal to the minimum fixed within sixty days from the notification. This sum is reduced by 30% if payment is made within five days of the notification.