Italy: Preparing for the return to work and the "next normal"

No, employees are not entitled to claim the "right to remote working". However, smart working is still considered today a tool for containing the spread of the virus (it is recommended by a protocol signed by the government and the unions).

It is unlikely that, at the end of the health emergency period, such "right to agile work" will be introduced. We expect that remote working will continue to be ruled by individual agreements between employers and employees.

The smart working mode, until the end of the COVID-19 epidemiological emergency status (extended to 30 April 2021), can be implemented without individual agreements. Once the emergency status is over, a prior written agreement between the employer and the employee will be required. 

In order to avoid possible claims about the employer's refusal to accept the smart working individual agreement, a company policy (setting the pre-requisites for the approval) is recommended.

A company policy would be useful to predetermine the cases in which it is not possible to grant smart working (for example due to the type of activity carried out) and to limit possible claims for discrimination.

As a general rule, outside the context of the COVID-19 epidemiological emergency, agile work requires a prior written agreement between the employer and employee. If the employer does not obtain the employee's approval, it will not be entitled to force him or her to work on an agile basis.

As a matter of exception, during the emergency status, employers are entitled to force employees to work entirely or predominantly from home. Once the COVID-19 emergency status is over, it is reasonable to assume that the ordinary provisions will return in force.

We are facing a new trend, with the involvement of the unions in setting up, by means of company level bargaining agreement, applicable remote-working rules.

Considering that the Italian piece of legislation requires an individual agreement between the employer and the employee, the unions are trying to reduce the risk of unequal treatment between employees of the same company.