by Stefano Trifirò
The obligations provided for by Legislative Decree No. 127/2021 regarding the Green Pass in the workplace must be applied by all subjects involved in its control system designated by the legislator. In fact, both employers and workers can suffer significant sanctions in the event of failure to perform the tasks assigned by the new regulations.
The first person called to manage the control procedure is the employer (private and public), who will have to organise the controls and verify that everyone complies with the provisions. In particular, the employer, before 15 October, will have to define a plan for the organisation of the controls, assigning the proxies to the subjects who will actually carry out the checks, and then, starting from that date and up to 31 December 2021, will have to manage the new access system every day.
That said, the rationale that gives the Green Pass the possibility of returning to work safely in the workplace lies in the fact that the subject holder of the Green Pass is considered immune for three reasons: 1) because he received the vaccine and, in this case, the validity of the document is 12 months; or 2) because he tested negative for the swab in the previous 72 hours; or 3) because he contracted the disease in the previous six months and recovered. The check must take place at the time of access to the company premises before the starting of work, identifying the operating procedures and also the persons in charge of the assessment, by means of a formal act of assignment.
Of course, those who are exempt from the vaccination campaign on the basis of appropriate medical certification are not subject to controls. As we said, the Green Pass provides the guarantee, a guarantee granted by law, of immunity to Covid-19, even if, as is known on the basis of scientific findings, immunity is never 100%. Even those who already received the vaccine, can contract Covid-19 at any time, however the function of the Green Pass is also to guarantee the privacy of citizens. In fact, with the control of the Green Pass, eg. when accessing the workplace, only the validity of the same is certain, without the possibility of questioning the reason for its suitability (vaccine, swab or recovery), thus respecting the right of privacy.
In the event that the holder of the Green Pass has similar flu symptoms of Covid-19 and does not undergo a swab, they could be, without their knowledge, a carrier of the virus and if enter the company premises without informing the company of their real pathological status, in case of contagion there will be the liability of the subject for not having behaved with due diligence. However, there will be no responsibility of the employer for having fulfilled its obligations, i.e. for having checked the Green Pass, and followed the procedure required by current legislation. According to art. 20 of Legislative Decree no. 81/2008 (consolidated workplace health & safety laws), each worker must take care of their own health and safety and that of the other people present in the workplace which are affected by the effects of their actions or omissions, in accordance with the training, instructions and means provided by the employer.
Before the entry into force of the aforementioned Legislative Decree No. 127/2021, the jurisprudence had expressed itself by judging the behaviour of the employer as legitimate when suspending a no-vax worker from work. The suspension concerned work performance and pay.
Now the law has established that the absence of the Green Pass by the worker will not allow them to access the workplace and they will remain on unpaid leave until they are the holder of the Green Pass, recognising the right of the worker to keep their job.
The employer who fails to check the Green Pass is subject to an administrative sanction from a minimum of 400 to a maximum of 1,000 euros (an amount that doubles in the event of repeated violations). Employees may also be subject to administrative penalties ranging from 600 to 1,500 euros.