In less than two weeks, a new law will enter into force in Italy, which will tighten the fight against the epidemic, and with it the obligation of employees to have the so-called green corridor. This is information about COVID-19 vaccine adoption or a negative test result. Italy’s new covid regulations apply not only to its own citizens but also to all employed workers in Italy, indirectly forcing them to undergo vaccination and testing, and employers to respect working conditions in this country.
Failure to comply with these regulations means the return of employees to Poland or the obligation to pay fines. Italian law goes further: workers suspended for not having a green permit deprive them of their right to wages. However, in our opinion, it will not be possible to apply this penalty to dispatched workers. The entitlement principle requires that the terms applicable in the country of employment be maintained if they are more favorable to employees than those in the country of dispatch.
On the other hand, employers who send Polish workers to Italy will face the dilemma of whether they can be asked if they have been vaccinated against COVID-19. In our opinion, by all means, there are at least several reasons for such a procedure. First of all, the new Italian regulations mean that admission to work is conditional on obtaining a vaccination certificate or periodic testing. Therefore, in order to fulfill the legal obligation, the employer must find out whether the dispatched worker will be allowed to work in the workplace.
Data on vaccination are health-related and sensitive in accordance with Art. 4 point 15 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals in relation to the processing of personal data and the freedom to transfer such data and the repeal of Directive 95 / 46 / EC (Journal of Laws No. EU of 2016 L 119, p.1; GDPR). Its processing is therefore subject to special rigor, but in accordance with the exceptions provided for by the GDPR (for example, not dispensing with the fulfillment of obligations in the field of labor law or necessity for reasons of public interest in the field of public health), the data referred to is obtained and processed by The authorized party will be possible. Another basis for processing vaccination data is the necessity to fulfill obligations under labor law, as provided for by Art. 207 par. 2 of the Law of June 16, 1974 – Labor Code (i.e. Code of Laws 2020, item 1320), the obligation to ensure safe and healthy working conditions. In order to protect employees from possible infection with SARS-CoV-2 and the possible loss of health or life as a result, the employer must know whether or not the employee has been vaccinated and is therefore more vulnerable to negative health consequences.
Regarding the deployment to Italy, the question may also arise whether it is possible to force dispatched workers to take covid tests and who will pay them: the employee or the employer. Remember that the new Italian law states that in addition to vaccination, negative tests will also be the basis for access to the workplace.
It should be noted that it is the employee’s responsibility to fulfill the common law obligations imposed on him, which determine his readiness to perform work – a negative test result (along with a certificate of vaccination) is considered a condition for the employee to perform work. In our opinion, there are no reasons for the employer to pay for the tests performed by the employee. The new obligation imposed by the Italian legislator concerns mainly workers. They are required to demonstrate their ability to work because they have fulfilled their obligations under common law. It’s the employee who has to do whatever it takes to be ready for work, so it’s up to them to pay for the COVID-19 test. Likewise, there are no reasons to set aside time to take exams during business hours.
Failure of the employee to undergo the vaccination will be very detrimental to the employer. In this case – if the employee also decides not to take the tests periodically and loses access to his workplace – the employer will not be able to allow him to do so. If he does this, he will face a fine of 400 to 1,000 euros (while the employee faces a fine of 600 to 1,500 euros). All this means that the posting will cease to be profitable, and therefore its termination and return of the employee to Poland will be justified, and then even the termination of the contract with the sending worker, if in such a case his additional employment ceases to be meaningful .
Other countries have already begun to follow in Italy’s footsteps. In Poland, in the list of legislative acts of the Council of Ministers, there is a bill aimed at introducing solutions that allow employers to obtain information about vaccination, who have SARS-CoV-2 infection or have a valid negative diagnostic test for SARS-CoV-2. The project also provides the possibility to obtain information about vaccination, infection or possession of a diagnostic test result before entering into a working relationship with a job applicant. However, at this point, the bill is still not on the cabinet’s agenda. Moreover, it is not known when or if it will happen at all. The reason for delaying further work on the bill may be the lack of a parliamentary majority to secure its support. According to media reports, social partners have also given a negative opinion of these solutions.
Italy: All employees must be vaccinated.
France: Health care professionals should undergo mandatory vaccinations. Whoever does not take any dose of the vaccine may be suspended from work without being entitled to wages.
Germany: Workers are not required to be vaccinated. However, from November 1, an unvaccinated person who will have to undergo quarantine will not be compensated for lost wages.
Greece: Health care professionals should undergo mandatory vaccinations. Those who have not had a dose of the vaccine or have contracted COVID-19 may be suspended from work without pay.
Great Britain: Nursing home workers should be vaccinated. Persons who are not immunized may be moved to locations that do not require guest contact or may be fired. The government does not rule out that health care workers are covered by the vaccination.
Slovenia: From October 1, government sector employees must undergo vaccination.
United States of America: Employees of companies employing more than 100 people must undergo mandatory vaccination or regular testing.
The regulations that were in force in Italy oblige people coming to this country from the territory of Poland to present a covid passport certifying: completion of the entire course of vaccination at least 14 days before entering Italy (with an EU approved vaccine), a history of COVID-19 disease or Negative smear test result. What’s more, in August and early September, Italians dramatically tightened regulations on tackling COVID-19, allowing access to most public facilities or travel by public transport only for people with a COVID passport. The latest regulation is therefore another step in mobilizing the public to undergo vaccination, despite the fact that restrictions on unvaccinated people have been in place for some time.
complete your Nazim Junior lawyer at PCS Paruch Chruściel Schiffter | Littler World
Paul Sich- Solicitor, Senior Advocate at PCS Paruch Chruściel Schiffter | Littler World
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