Green pass and daily checks: unable to record employee data

How to treat off-site employees, how to respect privacy rules, replace absent workers and monitor self-employed certification. These are some of the questions raised by companies that are preparing to apply the new rules introduced by Legislative Decree 127/2021.

“Off-site” employees

Who is in control of the green pass for those who lend their business in places other than those of their employer? Let’s think, for example, of the staff of service contractors, or the employees of companies that provide promotional activities in shopping centers, or the food delivery bellboys, in the event that they have to access restaurants. In all these cases, the law provides that the power-duty of verification belongs in the first place to the employers where the activity is carried out. However, this verification, according to the law, is also carried out by the respective employers, who obviously have an interest in ensuring that their “itinerant” employees are also in good standing, but who in this case will have to arrange for remote verification of the certification.

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Data processing

From an organizational point of view it would be much easier to be able to memorize the expiry date of the green pass, to avoid daily checks for all employees. However, this hypothesis appears to be in contrast with the provisions of the Dpcm June 17, 2021, in which it is expressly provided (article 13, paragraph 5) that the certification verification activity does not in any case involve the collection of the data of the holder in any form. . The only solution conceivable in the immediate future is therefore to carry out checks, where possible, every day and at the time of access to the workplace.

The replacement of the absent

The argument that probably creates more doubts in Italian companies is that of replacing workers absent for lack of the green pass. Here the Legislative Decree 127/2021 introduces a more favorable rule for companies with fewer than 15 employees, which will be able to suspend the absent worker for the duration corresponding to that of any fixed-term employment contract stipulated for his replacement (whose maximum duration , renewable for one time, is fixed in 10 days) and therefore refuse, albeit for a limited period of time, the resumption of the worker absent in the meantime with certification.

But what happens once the deadline for this replacement term contract has expired? Will small companies be able, in case the absence is prolonged, to resort to the replacement term contract according to the general rules? The answer seems to be affirmative, because the special rule introduced by the decree in question does not exclude the applicability of the general discipline of the term contract but seems to introduce only an exception to the general rule of immediate resumption of performance in the face of the achievement of the green pass by of the suspended worker. The same applies to larger employers, who will always be able to resort to fixed-term contracts within the limits set by law to replace absent workers.

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