Protected period: outside quarantine and subsequent voluntary stay due to Covid-19 infection
The Court of Asti, with the order of January 5, 2022, decided that the quarantine period (pursuant to art. 26, paragraph 1, Legislative Decree 18/2020 applicable ratione temporis) or voluntary homestay is not valid for the calculation of the protection period, not only vis-à-vis subjects who have had close contact with confirmed cases, but also vis-à-vis subjects who test positive for Covid-19. Indeed, it is prohibited by law to carry out the work regardless of the presence of symptoms or not related to the pathology.
Facts of the case
In the case in question, the worker, following contact with a colleague who tested positive for Covid-19, was first quarantined and then later, following a positive sample result, on a voluntary stay at the inhabitant. The employer dismissed her for exceeding the period protected under the national branch collective agreement.
The worker challenged the dismissal in court, claiming that:
- the number of sick days due during the calendar year less those between November 25, 2020 and December 4, 2020, this period to be considered as an employment injury, for having caught Covid-19 in the workplace by a colleague ; and second
- the same was qualifyable as “quarantine with active supervision or in voluntary foster care with active supervision” according to art. 26, paragraph 1, of Legislative Decree no. 18/2020 which excludes it from the protected period.
Contrary to what the employee argued, the employer argued that the protection provided for in s. 26, paragraph 1, of degree law no. 18/2020 only refers to periods of quarantine with active surveillance or voluntary accommodation with active surveillance ordered by the authority and not also in case the worker has contracted the Covid-19 infection.
The decision of the court of Asti
According to the judge in charge of the case, during the protected period, the days of absence for quarantine or voluntary stay provided for by law to combat the spread of the virus should not have been calculated.
The judge – citing s. 26, paragraph 1, of Legislative Decree no. 18/2020 as modified by subsequent legislative interventions which extended the deadline – highlighted how this provision was introduced with the aim of protect workers forced to be absent from work because they are subject to quarantine or voluntary homestay measures equating this absence with illness and excluding it from the calculation of the protected period.
In light of the foregoing, according to the Court, in the present case, the days of absence required for quarantine and those ordered for homestay due to the virus test of the said worker would not have had to be calculated in order to exceed the protected period.
The sentence says that “the report of the law is not to subject the worker to the consequences of absences from work due to the prevention and containment measures provided for by law and undertaken with the measure of the authorities to limit the spread of the Covid-19 virus, in all cases of possible or obvious infection with the virus and whatever the state of the disease which – as already known – may exist with or without infection (asymptomatic positive cases) “He later states”even when infected with a disease, what really separates Covid-19 from other diseases is the impossibility, imposed authoritatively, for the worker to carry out his work and for the employer to receive him within the legally and administratively prescribed deadlines, times that – again – are independent of the evolution of the disease but depend on the simple positivity or negativity of the virus”.
Based on these considerations, the court allowed the worker’s appeal, annulling the dismissal and (i) the reinstatement in her job as well as (ii) the payment of an indemnity equal to the last global remuneration since the day from the dismissal until that of the effective reinstatement, and in any case not more than 12 months of salary of total remuneration, as well as interest and revaluation in accordance with the law as well as the payment of social and social security contributions.