Absences for serious illnesses: clarifications on salary reductions and use of unused holidays

Absences due to serious illnesses are subject to the wage reduction pursuant to art. 71 of Legislative Decree no. 112/2008 converted into Law 133/2008?

In case of absence due to serious illness, when will it be possible for ATA staff to take advantage of the holidays accrued and not taken during this period?

These two questions were answered by ARAN with two application orientations, which reflect the reference legislation.

Salary reduction

For sick leave in public employment, salary reductions are envisaged, which however do not concern certain pathologies.

In fact, the CCNL Scuola, in art. 17, paragraph 9, provides that all absences due to serious pathologies are excluded from the calculation of ordinary illness which involve the carrying out of therapies, temporarily and / or partially disabling, with hospitalization and day hospital. Days of absence due to direct and / or collateral effects caused by the aforementioned therapies are also included, as long as they are also certified according to current legislation.

This benefit was also confirmed by article 71, paragraph 1, of Legislative Decree no. 112/2008 converted into Law no. 133/2008, expressly providing that “For periods of absence due to illness, of any duration, to employees of the public administrations referred to in Article 1, paragraph 2, of Legislative Decree no. 165, in the first ten days of absence, the basic remuneration is paid with the exclusion of any indemnity or emolument, however denominated, having a fixed and continuous nature, as well as any other ancillary treatment. The more favorable treatment that may be provided for by collective agreements or by specific sector regulations for sick leave due to an accident at work or due to service, or hospitalization or day hospital, as well as for absences related to serious pathologies that require life-saving therapies. […]”.

ARAN, with CIRS36 application orientationin taking up the aforementioned reference standards, he specified that “any other period of illness not attributable to these hypotheses falls within the calculation of the period of absence due to illness pursuant to art. 17 of the CCNL 2006/2009 of the School sector and is subject to any curtailments provided for by law and contract“.

The definition of these pathologies belongs only to the health bodies in charge of this. For the recognition of the benefit, the worker must therefore produce an adequate and clear medical certification showing not only his morbid condition, but also the further attestation that the same is configured as a serious pathology that has requested or requires the carrying out of life-saving therapies with temporary and / or partially disabling effects. The communication of such data is aimed exclusively at the attribution of the benefit. However, there is a prohibition for the competent Offices to disseminate information suitable for revealing the state of health of employees.

Use of unused holidays

The CCNL Scuola, in art. 13, paragraph 10, for the teaching staff provides that in case of particular service needs or in case of justified personal needs and illnesswhich have prevented the enjoyment of all or part of the holidays during the school year of reference, the holidays themselves will be used by the teaching staff, indefinitely, within the following school year in the periods of suspension of teaching activity.

As for ATA staff, will benefit from the holidays not normally taken no later than April of the following yearor, after hearing the opinion of the DSGA.

ARAN, with its own application orientation (CIRS39), specifies that on the subject of holidays, in relation to the legislation introduced with art. 5, paragraph 8, of Legislative Decree 95/2012 converted with amendments by Law 135/2012, the General Accounting Office of the State, with the opinion prot. n. 94806 of 9.11.2012, held that the right to leave, of an inalienable nature, enjoys a rigorous protection of constitutional importance in the Italian legal system, given that art. 36 of the Constitution provides verbatim that “the worker has the right to weekly rest and paid annual leave, and cannot waive them“. Like this, with regard to the possible postponement of the use of the same, the national collective labor agreements of the public sector, providing for the need for a planning of vacation periods, provide the possibility of using them in the following year within precise time limits.

As regards the holidays accrued and not taken in previous periods due to prolonged absences, reference must also be made to art. 2109 of the Italian Civil Code (holidays are assigned by the employer taking into account the needs of the company and the interests of the worker). It follows that the holidays accrued and not taken for reasons independent of his will, as can be a serious pathology, constituting the same an inalienable and unavailable right of the worker, they can be used by the same beyond the terms established by art. 13 of the CCNL. Then the administration should set the terms of use of the same.

Absences for serious illnesses: clarifications on salary reductions and use of unused holidays