Smart working: this is what happens after June 30, when the extension expires

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Next 30 June, in the absence of government interventions, the right for the fragile (both in the public and in the private sector) and for parents with children up to 14 years of age (in the private sector only) to work according to the smart working method expires. With the disappearance of the Covid pandemic, which is the reason behind the decision to extend this measure – adopted to prevent the risk of contagion in the workplace – the dossier is being brought to the attention of the Minister of Labour, Marina Calderone who, on the occasion of the last extension (at the end of March), managed to find the 16 million needed to confirm this possibility for fragile workers (for parents, the rule had even expired at the end of December).

In the absence of a new extension, therefore from next July 1, fragile workers and parents of children under 14 must return to the presence, as the protection of the law is lacking. However, in companies where through collective bargaining the parties have regulated smart working, these two categories of workers will have to return according to the procedures set out in the agreements.
In the post-pandemic period there has been a diffusion of company agreements between employers and union representatives; in many cases there are two or three days of remote work a week alternating with days in presence.

Priority for parents with children under 12, disabled and caregivers

In the other companies, the “protection” ensured by article 18 of law 81 of 2017 and by Legislative Decree 105 of 2022 (article 4 letter b) remains. according to which public and private employers who enter into agreements for the execution of work in agile mode must give “priority” to the requests formulated by workers with children up to twelve years of age, or without any limit of age in the case of disabled children (article 3, paragraph 3 of law 104 of 1992), or to the requests of workers with disabilities in situations of ascertained seriousness (article 4, paragraph 1 of law 104 of 1992) or who are caregivers. If these categories of workers request to benefit from smart working, they cannot be sanctioned, demoted, fired, transferred or subjected to any other organizational measure that could have a negative impact on working conditions.

Maresca: precedence will remain and no longer the right under the law

«Since it is a priority – explains Arturo Maresca, Professor of Labor Law at the La Sapienza University of Rome -, if a certain percentage of recourse to smart working is envisaged in a company, priority is given to these specific categories of workers. It is a right of precedence to be exercised in the presence of limitations, but from 1 July in the absence of new extensions there is no longer a right to agile work, as instead until 30 June, by virtue of the extensions of article 90 of the Legislative Decree 34 of 2020, provided that this method was compatible with the work performance”.

The two different interpretations of the norm

Finally, it should be noted that two lines of interpretation have emerged on the exercise of the right to smart working for frail workers and workers with children under the age of 14: some have interpreted it as a 100% right to work remotely – although it was not explicitly provided for by the legislation – and who as the 100% right to carry out the work performance in agile mode, therefore partly remotely and partly in presence.