Vaccination requirement for employees over 50

As a result of the recent Legislative Decree no. 1/2022, for the purposes of access to workplaces, from 15 February 2022 until 15 June 2022, employees aged 50 years or over ("over 50"), subject to the compulsory anti-SARS-CoV-2 vaccination, must possess and are required to present the enhanced COVID-19 Green Certification – i.e. the “Green Pass Rafforzato” (enhanced green certification).

This obligation also applies if the worker reaches the age of 50 by 15 June 2022.
Therefore, for these workers over 50, from 15 February until 15 June 2022, the basic "Green Pass" will no longer be sufficient to access workplaces.

A “Green Pass Rafforzato” can only be obtained for:

1. successful SARS-Co-V-2 vaccination at the end of the primary vaccination cycle;
2. administration of the booster dose after completion of the primary cycle;
3. recovery from COVID-19, with termination of isolation, in accordance with the regulations in force;
4. recovery from COVID-19 after vaccination (either 1st, 2nd or possibly a 3rd dose).

After administration of the first dose of the vaccine, the “Green Pass Rafforzato” is valid for 15 days from the date of administration.

Adoption of a procedure to regulate the methods of controls

Since Law Decree no. 1/2022 places on the employer the obligation to verify the possession and presentation of the “Green Pass Rafforzato” for workers over 50 years old, it is advisable to adopt a specific company procedure to verify possession of the green certification, which will have to be updated in case of new regulations.
In particular, the staff in charge of the check will use the “verifica rafforzata” item of the "Verifica C-19" app, to select which identity document may be requested to verify the age of the employees.
The new version of this procedure may be available in the company or on the company website and employees may be asked to consult it periodically.
This procedure may specify that the employer does not have to check compliance with the vaccination requirement for those over 50, but only the possession of a valid, “Green Pass Rafforzato”.


Legal consequences for employees

As provided for in the relevant legislation, in the event that employees have reached the age of 50 and are found not to have a "Green Pass Rafforzato ":

• at the time of access to the workplace, they will be considered unjustified absentees, without disciplinary consequences and with the right to keep their job until the presentation of the aforementioned certification and in any case no later than 15 June 2022. For the days of unjustified absence, no pay or any other remuneration or emolument shall be paid, and the relative period of absence shall not be useful for the accrual of any contractual, economic or regulatory institute;
• inside the workplace, in addition to being removed from company premises and considered to be unjustifiably absent – with the consequences described above – until such time as the employee submits the green certificate, the employee's behaviour may be assessed by the company for disciplinary purposes and will be reported to the Prefect for the imposition of financial penalties provided for by law (from EUR 600 to 1500).

In essence, the same consequences may apply as those already provided for in the case of failure to possess the 'Green Pass' when entering the workplace (or within the workplace).

Therefore, the resumption of work and the related payment of wages will be subject to the presentation by the employees of a valid “Green Pass Rafforzato”, which they will have to submit to the relevant control by the persons in charge.

If employees are not in possession of a valid Green Pass (i.e. an “Green Pass Rafforzato”) as of 15 February 2022 and are workers over 50 years of age, they will always be able to notify their employer, at least 48 hours in advance, thus avoiding possible disciplinary and administrative sanctions resulting from the checks. The days of absence taken, in any case, will not be paid until the "Green Pass" is presented.

The employer, however, may provide that all workers over 50, who intend to access the workplace, at the time of entry must go to the staff member in charge of controls in order to show the “Green Pass Rafforzato”, in fulfilment of the duty of diligence, good faith and fairness in the execution of the employment relationship.

Exceptions to the obligation to hold the “Green Pass Rafforzato” are workers over 50 years of age who present specific medical certification of exemption from the anti-SARS-CoV-2 vaccination issued by the general practitioner or vaccination doctor in accordance with the circulars and criteria established by the Ministry of Health and in the manner provided by the regulations in force.

Certificate in digital mode

Moreover, as a result of the entry into force of the Prime Ministerial Decree of 4 February 2022, as of 7 February exemption certificates are issued exclusively in digital form and their verification takes place in the same way as the verification of the "Green Pass", by scanning the "QR Code". Employees with a paper exemption certificate have 20 days (until 27 February 2022) to obtain a digital certificate from their certifying doctor. After that date, the paper certificate will no longer be valid.

Since exempted workers over 50 years of age can be assigned to different tasks to prevent the risk of infection, including agile work, if they have the appropriate medical certificate of exemption, both in paper and digital format, they must promptly notify their employer in writing of this condition (also by e-mail) so that the employer can take the necessary steps to protect them, possibly with the support of the Company Health Service.

For all other workers who are under 50 years of age and who do not turn 50 by 15 June 2022, the acquisition of the “Green Pass Rafforzato” is not compulsory. Therefore, for those who belong to this category, access to the workplace can also take place through the "Green Pass" base, also issued following an antigenic or molecular swab test with a negative result.

It should be noted that, as clarified by art. 9-novies of the Decree Law No 52/2021, the Green Pass base issued as a result of swab whose expiration time is during the work service retains its validity until the completion of working hours for that day.

Naturally, workers under 50 years of age who have a paper exemption certificate will also be subject to the provisions of the aforementioned Prime Ministerial Decree of 4 February 2022 and must therefore always obtain the certificate in digital form, upon request to the certifying doctor, by the aforementioned date of 27 February.

Remote work

Finally, regardless of the age of the employees, "Smart Working" (work partially carried out remotely) cannot be used for the purpose of evading the obligation of the "Green Pass" or the “Green Pass Rafforzato”.

The obligation to hold a Green Pass applies to all staff, even if they are working remotely, and the absence of a "Green Pass" or “Green Pass Rafforzato” is not a reason to exclude them from returning to their place of work.

With the exception of "fragile" subjects as specifically identified by the law for these purposes, “Smart Working” provides for alternating between remote and in-person services.
Therefore, if on the day of return to in-person work, employees are found to be without a Green Pass, their pay for that day will be suspended.

In order to prevent and overcome any possible IT problems during checks, we suggest that employers inform employees to bring with them a hard copy of the "Green Pass", basic or “Green Pass Rafforzato”, or any other documentation useful to prove their possession of the green certificate or the right to it, or the documentation of exemption from vaccination.

Finally, to keep up to date on the "Green Pass" and related obligations for access to workplaces, please visit www.dgc.gov.it