Introduction
Art. 33, paragraph 3 of Law 104/1992 establishes that an employee is entitled to take three days of paid monthly leave covered by notional contributions, even on a continuous basis, to assist a person with disabilities and in need of high or very high levels of support, provided that the worker is:
- the spouse or partner in a civil union or cohabiting partner;
- a relative or in-law up to the second degree.
Moreover, in case of the absence or death of the parents, spouse, civil union partner, or cohabiting partner, or if they suffer from disabling conditions or have reached the age of 65, the right to take monthly leave is recognized for a worker who is a relative or in-law up to the third degree.
The right to benefit from monthly leave can be exercised by the worker, provided they meet the aforementioned subjective requirements and that the person being assisted is not hospitalized full-time.
It is also stipulated that:
- while the overall limit of three days remains, for the assistance of the same individual with disabilities, the right to use the leave in question may be granted, upon request, to multiple individuals from those listed above, who may take turns using it;
- the worker has the right to provide assistance to multiple individuals, provided that they are:
- the spouse or partner in a civil union or cohabiting partner,
- a relative or in-law up to the first degree, or up to the second degree if the parents or spouse of the person with disabilities have reached the age of 65, or they also suffer from disabling conditions, or are deceased or absent.
In light of the complexity of Art. 33, paragraph 3 of Law 104/1992 and the many possible combinations allowed for using the monthly leave in conjunction with other types of leave and permissions, below is a summary of the effects that the application of this provision reflects on the company as well as some legal principles contained in recent rulings of the Court of Cassation, which allow us to clarify important practical implications.
Organizational and Procedural Implications
The broad subjective scope of application of Art. 33, paragraph 3 of Law 104/1992 and the possibility of combining the use of leave granted under this provision with other types of leave and permissions create significant difficulties both in terms of interpretation and organization.
It is not uncommon for the use of the leave in question, even in combination with other types of leave, to affect the functioning of the work organization, forcing production processes to make prompt adjustments that can lead to a significant increase in labor costs.
Indeed, with regard to the paid monthly leave in question, it should be noted that:
- the timing of the leave is determined by the worker or employee entitled to it, without the current legislation requiring prior notice that would allow the employer to take appropriate measures to compensate for the worker’s absence on an organizational level;
- the employer may face significant organizational difficulties, especially in cases where workers entitled to take the monthly leave in question are required to work shifts, particularly when those shifts involve night work;
- the law does not allow the employer to transfer the worker entitled to take the leave in question to address organizational difficulties, unless the employee consents.
While it would be advisable for the legislature to intervene to ensure a better balance between the right to take the leave in question and the organizational needs of the employer, the Ministry of Labor and Social Policies has deemed it necessary to ensure the balancing of the right to assist the person with disabilities with the smooth functioning of business activities, clarifying that:
- the employer has the right to request that the worker indicate the timing of the paid leave under Art. 33, paragraph 3 of Law 104/1992 on a monthly or at least weekly basis; however, the worker may change the schedule already submitted to the employer when changes to the timing of the leave are solely aimed at ensuring the full right of the person with disabilities to receive effective assistance. Therefore, the schedule presented by the worker may only be modified in the event of “urgent assistance needs”[1];
- the terms and methods of communication regarding the timing of daily or hourly leave should be agreed upon with each affected worker—or, if present, with the union representatives—to ensure that the entity’s productivity is not compromised.
The issue takes on even broader organizational dimensions when considering that the same worker who benefits from the leave under Art. 33, paragraph 3 of Law 104/1992 may use it to assist multiple individuals with disabilities who require intensive support[2].
Furthermore, in practice, and overcoming a previous interpretative stance[3], it has been recognized that monthly leave can be used to assist a person with disabilities even while the latter is engaged in work activities; this interpretation is based on the fact that the current legislation does not impose any limits on taking leave or time off when the person being assisted is working, as the leave taken by the worker can legitimately be used to assist the disabled person “in collateral and auxiliary activities related to the performance of work activities by the disabled person, such as accompanying them to and from work, or in assistance activities that do not necessarily require the presence of the disabled person but are supportive to them”[4].
Verification of the Actual Conditions for Taking Monthly Leave
The legal framework regarding the leave under Art. 33, paragraph 3 of Law 104/1992 presents another important element for analysis, found in paragraph 7-bis of the aforementioned article. This provision states that “without prejudice to the verification of the prerequisites for determining disciplinary responsibility, the worker (…) forfeits the rights under this article if the employer or INPS verifies the absence or cessation of the conditions required for the legitimate use of these rights.”
According to a well-established position expressed by the Supreme Court, “it is the employer (…) who is obliged to grant three days of monthly leave to the worker assisting a person with disabilities, in a serious condition, a relative or in-law up to the third degree living with them (…) as expressly provided for in Art. 3 of Law 104/1992”[5].
The interpretation that the obligation to verify the prerequisites for the legitimate use of leave lies with the social security institution is therefore unfounded. Supporting the interpretation adopted by the Supreme Court, it is noted that the payment of the leave in question represents a “typical obligation of the employer.”
Thus, the obligation to verify the actual existence of the conditions required for taking the leave rests with the employer, and the certificate issued by INPS, which confirms the worker’s right to take the leave, pertains only to the social security relationship. It constitutes prior authorization that allows the employer to offset the wages due for the duration of the leave actually taken by the worker against the mandatory contributions owed. The financial burden resulting from the use of the leave is borne by the social security institution, which intervenes only “in a logic of general preventive control regarding the appropriateness of the request in relation to the legal entitlement, to ensure the correctness of the financial provision (…), without intervening in the specific granting of the leave, which falls exclusively within the management of the individual employment relationship”[6].
Judicial Guidelines
The interpretations provided by the Supreme Court concerning the paid leave under Art.