The destiny of remote working after the end of the pandemic emergency

Despite the fact that the state of emergency ended last 31 March, the legislation continues to use agile work as a fundamental anti-contract measure, at least, certainly, until 31 August 2022. What will be the destiny of such institute after this deadline has passed?

After the end of the emergency period, the topic of remote working and its application in the near future is increasingly being debated.

The experience of forced remote working has been the stimulus for many companies to introduce new projects of agile work, leading to a significant spread of this type of working, which was under-utilised or not at all used in most Italian companies in the pre-pandemic period.

The national regulation, however, was issued already in 2017 by Law No. 81, and provides for the signing of a written agreement between employer and employee that establishes the duration, conditions of the withdrawal, mode of performance, technological tools used, in compliance with the right to disconnection. The employee's consent to the remote performance of work is necessary.

In order to deal with the epidemiological emergency, the Italian Government decided to derogate from such legislation, providing for a more agile system to allow companies to use this method of carrying out work.

In fact, a simplified procedure has been introduced, that does not require a written agreement with the worker and is based solely on the submission of predefined forms to be filled in and sent via the computer application made available by the Ministry of Labour and Social Policies to communicate the list of workers involved.

Conversion Law No. 52/2022 of the Reopening Decree (Decree-Law No. 24/2022) recently extended the terms for the use of the agile work communication procedure, implemented regardless of the signing of the individual agreement with the employee, and re-proposed measures in favour of fragile workers.

In fact, the possibility for companies operating in the private sector to use the simplified procedure has been extended until 31 August 2022, without the requirement to enclose a copy of the individual agreements signed with individual workers.

Furthermore, the text provided for the extension until 30 June 2022 of the right of 'fragile' employees, public and private, to work in agile mode when this is compatible with the characteristics of their duties.

With the Protocol updating the measures to combat Covid in private workplaces of 30 June 2022, the encouragement to use the agile work as a tool to face the spread of the virus was furtherly reiterated, notwithstanding the end of the state of emergency.

At the expiry of the aforementioned deadlines, therefore, as required by national law, the rules set out in Law No. 81 of 2017, understandably 'sacrificed' in recent years to ensure the safety of workplaces and thus the reduction of opportunities for interpersonal contact to prevent the spread of the pandemic, will be applied again.

A number of bills have been filed before Italian Parliament to amend the aforementioned law in order to modernise the institute and make it more similar to the way it has been managed by companies and received by workers over the last two years.

The current legislation, in fact, states as an essential requirement that individual agreements transpose what may be defined by collective bargaining agreements on agile work, with binding effect at least for employers falling within the scope of those agreements.

There is a pressing need to provide answers to companies so that they can better organise their work and be certain of how to exercise the employer’s power towards the company’s workers, with particular reference to the power of control and the right to disconnect.

It is to be hoped that an updated national regulatory framework will be set soon, considering the evolution that has taken place in the last two years within Italian companies and that the agile work has now become part and parcel of the relationship between employer and employee.