Contacts

Recently, the first substantive pronouncements have emerged in the jurisprudential landscape on the issue of whether or not dismissal for exceeding the comport period determined by periods of absence from work due to the employee’s found positive for Covid-19 infection.
Specifically, the Court of Asti, in a ruling dated 5.1.2022, and the Court of Palmi, in a ruling dated 13.1.2022, declared the invalidity of the challenged dismissals for exceeding the comport period pursuant to Article 2110 of the Civil Code, because the employer had also counted some of the dismissed workers’ absences due to their being found to be positive for Covid-19 infection for the purposes of the aforementioned period.
With the proclamation of a state of pandemic emergency by Covid-19, indeed, the regulation of the right to job retention in Art. 2110, c. 2, c.c. and the related determination of the comportment period were affected by the provision of Art. 26, c. 1, Decree Law No. 18/2020, so-called Cure Italy, which provided that, in the presence of a series of measures aimed at containing the spread of the virus, “until December 31, 2021, the period spent in quarantine with active surveillance or in fiduciary home permanence with active surveillance […] by private sector employees, is equated with illness for the purposes of the economic treatment provided by the reference legislation and is not computable for the purposes of the comport period.”
Indeed, this provision expressly refers to the cases of quarantine with active or precautionary surveillance and fiduciary home stay.
For this reason, in defending themselves in the lawsuit, the employers inferred the legitimacy of the dismissals intimated, on the basis that the rule in question should apply restrictively only to the cases covered therein and not also to cases in which workers had been absent from work due to having contracted the Covid-19 infection.
To the contrary, the two aforementioned Courts have ruled in the opposite direction, upholding the appeal of the dismissals submitted to their consideration and, on the other hand, holding that absences from work determined by the employee’s positive reaction to the Covid-19 virus do not count toward the comporto period, specifying, in particular, the judge in Asti, that “of the rest, the rationale of the rule is that the consequences of absence from work that is causally attributable to the prevention and containment measures provided for by the legislature and taken by measure by the authorities in order to limit the spread of the Covid-19 virus should not be borne by the worker, in all cases of possible or ascertained contagion by the virus and regardless of the state of illness, which – as is now known – may or may not coexist with the contagion (case of asymptomatic positives). Indeed, even in the case of contagion with disease, what distinguishes Covid-19 disease from other diseases is the authoritatively imposed inability of the worker to render work and of the employer to receive it for the regulatory and administrative timeframes, timeframes that-again-are independent of the evolution of the disease but depend on whether or not the worker is merely positive for the virus“. (EB)