National Labour Inspectorate: clarification on penalty regime for failure to grant family leave

23 December 2022

The enactment of Italian Legislative Decree No 105/2022 (the ‘Work-Life Balance Decree’), implementing Directive (EU) 2019/1158 of the European Parliament and Council, introduced new initiatives in the area of family leave. In particular, on this point, the National Labour Inspectorate’s (Ispettorato Nazionale del Lavoro, ‘INL’) note No 2414 of 6 December 2022 adjusted the penalty regime for the new obligations imposed on employers regarding employees’ use of family leave.

Decree provisions

Among other measures, Article 27 of the decree in question grants new fathers a period of compulsory abstention from work of 10 working days (doubled in the case of twins), with 100 percent pay paid by INPS. This period must be requested from the employer in writing and with not less than five days’ notice, unless better terms and conditions are stipulated in the national collective bargaining agreement (contratto collettivo nazionale di lavoro, ‘CCNL’) applied to the employment relationship.

Additional measures related to work-life balance for parents and caregivers have also been provided, with the aim of optimising the reconciliation between the two said spheres and achieving a more equal sharing of care responsibilities and tasks between men and women, promoting effective gender equality in both work and family life and promoting the overcoming of stereotypes.

The legislature’s intentions, through the provisions contained in the aforementioned decree, are to bring about systematic reform of the pre-existing protections and rights on family care and work-life balance, through updating, reorganising and modernisation of the regulatory framework on the subject.

The penalty system

In its note INL clarified that in the event of an employer’s obstruction or refusal to allow workers to take leave, an administrative penalty of EUR 516.00 to EUR 2,582.00 applies. In addition, non-compliance could stop the employer from obtaining the certification of gender equality.

If the employer obstructs or refuses to allow a father to take the alternative leave in serious situations (e.g., death of the mother), this is punishable by the criminal sanction of arrest for up to six months and failure to obtain the certification of gender equality.

For breach of the prohibition of dismissal by the employer of the new father until the child’s first birthday, in addition to the invalidity of the dismissal and all that it entails, an administrative sanction of EUR 1,032.00 to EUR 2,582.00 applies. The same administrative penalty applies if the right to job retention is breached.

Finally, an administrative penalty of EUR 516.00 to EUR 2,582.00 applies in cases of non-compliance with daily rest periods for mother and father as well as disabled children.

INL clarified that under the transitional regime for births occurring before 13 August 2022 (the effective date of the decree under review), the protections provided by the decree for the right to the payment in lieu of notice in case of resignation within the child’s first year and the prohibition of dismissal apply.

The assistance rights provided for spouses and relatives-in-law are also extended to de facto cohabitants and civil unions under Italian Law No 104/1992.

Finally, the note clarifies that workers’ requests for the leave provided under the law must be compatible with the ordinary operation of the company, while also coordinate with the needs of the employer.

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