Handbook for Employers and Business Owners

UPDATE 1 APRIL 2022: All the strategies shown remain entirely valid. Watch the update video from 1 April.

    1. All commercial businesses not exempted by the Prime Ministerial Decree of 21.02.2022 are required to check that employees and customers hold a Green Pass, depending on the case either "basic" (via vaccination, negative test, or recovery) or "reinforced" (vaccination or recovery only).

    2. It is not necessary to carry out checks at the entrance to the workplace or commercial premises because the law allows for spot checks. Consequently, it is not necessary to check every customer and every employee; it will be sufficient to carry out a few spot checks from time to time.

    3. Checks must be carried out respecting the privacy of workers and customers. Therefore, if possible, it is advisable to conduct checks in a closed room inaccessible to other workers and customers. Obviously, what happens in a closed room remains between the person carrying out the check and the customer or employee; thus, anyone wishing to let customers or employees in without a Green Pass regardless will be able to do so without anyone finding out. The Green Pass contains confidential health data, meaning it is not permitted to retain the data of checked customers or employees, and disclosing it is prohibited.

    4. A business owner compelled by law to carry out Green Pass checks has the right to obtain from the Ministry of Health all instructions necessary to conduct these checks in compliance with EU Regulation 2016/679 (GDPR). It is advisable to send the letter attached here to the Ministry requesting the instructions and forms to be handed to customers and employees. If the Ministry fails to respond, this fact will constitute an excellent argument for challenging any potential fines.
When dealing with pandemicist customers who complain because they were not asked for their Green Pass, one can always argue that one is waiting for documentation from the Ministry authorising checks.
April 2022 Update: The Ministry of Health has responded to those who sent the request above; we examine the response in this video.

    5. The employer will draw up an internal company organisational policy (attached here) detailing the verification procedures and a daily log of spot checks, indicating the number of workers and customers checked, how many were compliant, and how many were non-compliant. The names of workers must not be entered in the log for reasons of privacy protection.

    6. Employers running businesses with more than fifteen employees must declare workers without a COVID-19 Green Pass to be unjustifiably absent—naturally, only if identified following a check—and they will not be allowed to return until they obtain the certificate, or after 31.03.2022. Clearly, checking workers, pursuant to point 3, is confidential and no one will be able to learn the outcome. Thus, an employer who needs a worker without a Green Pass and wishes to breach regulations that are in any event unlawful, unenforceable, and unconstitutional, will have an easy time not logging the irregularity and maintaining the employment relationship. What took place cannot be ascertained by anyone.

    7. Police forces have no right to enter private workplaces (only those that are also public establishments open to the public) and have no right to demand the Green Pass from employees, who should be instructed that, if faced with a check request by law enforcement, they must refuse to show the Green Pass—whether they have one or not—because the only party authorised to conduct checks on employees is the employer. The employer, in the event of an inspection, will produce to law enforcement the documents referred to in point 5.

    8. Suspension is optional: the employer is not obliged to suspend their employees! They can decide not to do so regardless of the size of the business, even in the case of businesses with over 15 employees. Therefore, an employer mindful of their employees' interests and the sound operation of their business will do well not to suspend anyone, keeping everyone in work. In private enterprises with fewer than fifteen employees, the suspension of an employee without a Green Pass is only possible after the fifth unjustified absence (in reality, unjustified presence). See Article 9-septies, paragraph 7, of Decree-Law no. 52 of 22 April 2021, which reads:

“7. In enterprises, after the fifth day of unjustified absence referred to in paragraph 6, the employer MAY suspend the worker for a period corresponding to that of the employment contract entered into for their replacement, in any case for a period not exceeding ten working days, renewable up to the aforementioned deadline of 31 March 2022, without disciplinary consequences and with the right to job retention for the suspended worker.”

    9. An employer and business owner is not obliged to hold a Green Pass because the legislation (Art. 9-septies of Decree-Law 52/2021) does not provide for it.

    10. The only business owners for whom the law provides an obligation to hold a Green Pass are the owners of catering and food and beverage serving establishments. However, the rule in question, recently amended by Law 3/2022, is unenforceable. Indeed, the business owner would be required to hold and present the Green Pass. Yet it is not specified to whom the employer would be obliged to present it. Not to employees, who have no inspection powers over their employer; not to customers, who are not among the parties authorised to perform checks. Not to police forces, since Article 13, paragraph 2, letter c) of the Prime Ministerial Decree of 17.06.2021 restricts the checking of the Green Pass to the operators of public establishments for access to which the possession of COVID-19 green certification is mandated, as well as their delegates. Consequently, law enforcement cannot check the Green Pass of owners, even in the case of food and beverage serving establishments. In any event, anyone wishing to check a Green Pass must adhere to a set of rules and formalities.

    11. If a member of the police forces wishes to check the Green Pass of the owner of a food and beverage serving establishment, a customer, or an employee, the first thing to do is to ask them for a series of details, namely:
    a) their personal details (full name, place and date of birth, branch of service, and rank) to be proven by showing their warrant card or ID; a uniform is not enough, nor is merely stating one's identity;
    b) their appointment as a personal data processor by the data controller: all law enforcement officers wishing to check the Green Pass must have been appointed as personal data processors by the data controller, which is the Ministry of Health, via a written deed that they must produce;
    c) the law enforcement representative wishing to check the Green Pass must provide a form containing the privacy notice pursuant to Articles 12 and 13 GDPR;
    d) the privacy notice or a separate document must state the name of the Data Protection Officer (DPO), which is mandatory in the case of health data processing by a public authority (Articles 32 and 37 GDPR);
    e) the personal data processor must have received the necessary processing instructions from the controller, which is usually done by completing a training course; therefore, the law enforcement representative must be asked to produce the course certificate or proof of having received instructions from the data controller.
If the law enforcement representative is unable to provide a documented response to these requests, one must refuse to answer any questions regarding the Green Pass, pointing out to them that requesting to view the document constitutes an administrative infringement punishable with severe fines under Article 83 GDPR.

Everything there is to know about point 11 will be covered in detail in an upcoming video, due out on Monday the 7th.

    12. Since Article 9-septies, paragraph 1 of Decree-Law 52/2021 only mandates the Green Pass for owners of food and beverage serving establishments, it follows that all other owners of other businesses (shops, bookshops, professional practices, market stalls, passenger or freight transport services, etc.) are not required to hold a Green Pass, as we have repeatedly pointed out, but only, if applicable, to check those of their employees.  

Everything you need to know if you run a business and do not wish to suffer and submit to the pandemicist dictatorship.