Privacy and the right to self-determination are invoked, the Guarantor Authority and the Council of State answer
Tic Tac Green Pass for the world of work: less than a month to adapt, from public to private to professional firms, to small VAT, what employers will have to do to comply with the new obligations under the decree and how to protect the privacy of employees.
The date scheduled for the entry into force of the latest provisions dictated by the Draghi government, to ward off a new autumn wave of the epidemic that would seriously jeopardize the recovery of the economy, is therefore set for 15 October.
Let's examine the essential points of the provision:
WHEN: 15 October / December 31st
The provisions of the new decree will begin to run from 15 October and will remain in force until 31 December, date currently identified for the end of the pandemic state, hence the state of emergency.
RECIPIENTS: public and private sector.
The categories excluded from the application of the provisions that establish the obligation of the green pass are really small. Certainly the application for the entire public sector, including staff of the independent administrative authorities, of Consob and the supervisory commission on pension funds, of the Bank of Italy, as well as public economic bodies and constitutional bodies, together with those who hold senior elective or institutional positions. To the employees of the aforementioned entities, add those who carry out their work in a public administration, albeit with external contracts, for example consultants.
The greatest innovative scope is due to the obligation also extended to the private sector, so that all employees must show the green pass to access the workplace. For the world of Justice, access to the courts will be regulated differently by virtue of the role held and the purpose of access, witnesses are excluded from the obligation to possess and exhibit, the defendants, the other parts of the process, as well as consultants and experts (which however, they should have it if, in possession of VAT, for example, to access the professional studio), the obligation applies, instead, for magistrates (also honorary), state prosecutors and members of tax commissions. For ordinary magistrates, going beyond the entrance to the Court without the green pass will also be considered a disciplinary offense, punishable according to the rules governing the matter.
SANCTIONS: DIFFERENCE BETWEEN PUBLIC AND PRIVATE.
For workers:
Non-compliance with the provisions of the decree varies for employees in the public and private sectors.
While for employees of the first sector they must take effect 5 days of unjustified absence, to make the sanction of suspension of the employment relationship applicable (salary included), for the private sector it will not be necessary for the employer to wait for any deadline, the sanction being immediately applicable. Furthermore, for all categories of employees, public, private, self-employed persons present in the workplace without having a green pass, penalties ranging from € 600 up to € 1.500. Common element to the two sectors, there remains the exclusion of the possibility of obtaining disciplinary measures and the right to keep the employment relationship always remains unaffected.
For employers:
The obligation to verify compliance with the decree is not without sanctioning profiles, in case of omissive conduct, paid by employers, penalties ranging from a minimum of 400 euros up to the amount of euros 1000.
CRUCIAL POINT: THE CONTROLS.
Who should carry them out and what procedures to follow.
At first we thought about the competent doctor but, the category immediately clarified its position, excluding this possibility.
There is no other choice left to the Government, at this point, if not to ascribe the duty of control to the employers, without any discrimination between the public and private sectors.
For this purpose, there is less than a month of time for top management and public executives to design the verification processes and identify the subjects possibly assigned to control.
Essential points of the operating procedures must be:
– appointment of a responsible person in charge of the assessment;
– arrange for the check to be done at the time of access to the workplace;
– the use of an official app developed by the Ministry (VerifiCa19) to read the validity of the green pass; For large companies, more structured, the use of digital totems at the entrance is also assumed.
GREEN PASS E PRIVACY: THE POINT OF THE GUARANTOR AND THE COUNCIL OF STATE.
THE GUARANTOR AUTHORITY: the processing of data during the verification phase does not involve any offense if it follows the legislation and does not require the consent of the interested party.
The Guarantor observes that in the verification procedure conducted according to the reference standards in force, through the app developed by the Ministry of Health - VerifiCa19- there is no data collection. This aspect is sanctioned and guaranteed by the DPCM 17 June 2021 which provides, Furthermore, failure to collect any data referable to the holder of the green card by the person in charge of the verification and duly instructed.
The limits of the checks remain ascribed to the employers, therefore, the processing of data must be functional to fulfill the legal obligations prescribed to him and adequate to the principle of minimization in terms of personal data protection.
In tal senso, the person in charge of carrying out the checks must receive specific instructions and the processing performed cannot in any way be considered illegal.
THE COUNCIL OF STATE
The pronunciation of the supreme organ of Palazzo Spada is very recent, that - conforming to the decision issued by the Lazio TAR no. 4281/21- rejects a precautionary appeal against the obligations imposed by the Government through the green pass argued on the alleged violation of the European Regulation on the protection of personal data, specifically the health care ones pursuant to art. 9 GDPR.
The CdS operates a balance of interests between the constitutional principles relevant to the question to be decided, highlighting that between the interests of individuals expressed in their right to self-determine epublic interest in health and safety, also provided for by art. 32 of the Constitution, it is certainly the latter to be evaluated as prevalent so that the actuality of the prejudice would not derive, indispensable requirement for the acceptance of the precautionary appeal.
The prevalence of the interest in the protection of public health and safety was not the only aspect evaluated in the balancing judgment, as another very important collective interest cannot be underestimated, also placed at the basis of the rationale of the decree issued by the Draghi government, or theneed for economic and social recovery activities.
On the relief of the alleged violation of the EU 679/16, the dictat of the Personal Data Protection Authority was clear: having undergone the vaccine remains a data subject to the exclusive control of the competent doctor who will be able to establish the suitability for the job of the worker, never of the employer. However, the verification of possession of the green pass is a control that can be exercised both by the employer and by an ad hoc appointee as the control does not reveal anything about this condition (vaccinated / unvaccinated), therefore it is not possible to collect particular data pursuant to art. 9 GDPR but only "check" the presence of the green pass, conduct from which no unlawful processing of personal data follows.
Scientific contribution of’Lawyer. Marcella Esposito