Time spent donning and doffing of Personal Protective Equipment (PPE): paid or unpaid?
Putting on and taking off work clothes constitute part of working time whenever such clothes have been provided by the employer with the obligation to wear them (and keep them) exclusively in the workplace.
Conversely, putting on the so-called ‘overalls’ does not fall within working time if the worker has the right to take his/her work clothes home and go to work already wearing the clothes.
The above was confirmed by the Ministry of Labour on 23 March 2020 in response to a question posed by one of the national unions (Unione Generale del Lavoro-Federazione nazionale delle autonomie).
The Ministry reply cites the well-established orientation of the Supreme Court of Cassation according to which “If the worker is given the right to choose the time and place where to put on the uniform (even if at home, before going to work), this is part of preparing diligently for work and as such, the time necessary to do so is not remunerated. If, on the other hand, the modality is imposed by the employer, who decides time and place, the donning and doffing itself is part of the actual work and therefore the time necessary to carry it out must be remunerated (see. Court of Cassation, working section 16.5.2013, no. 11828, which recalls Court of Cassation 10.9.2010 no. 19358; 9.9.2006 no. 19273; 21.10.2003 no. 15734; Court of Cassation, working section 13.04.2015, no. 7396)”.
The Ministry of Labour reminds us that according to the EU Court of Justice, only the period during which workers have the “possibility (…) to manage their time freely and to devote themselves to their own interests” does not constitute working time (Judgment of 10 September 2015, case C-266/14).
Finally, following the same line of interpretation, the Court of Cassation – with Ruling no. 505/2019 – reaffirmed that in the employment relationship the time necessary to put on the company uniform is part of working time only if it is subject to the power of the employer.
The Ministry goes on to say that the time taken in donning and doffing is considered part of working time when it is “ethero-directed” by the employer, who dictates the time and the place to do it, because in such time periods the worker is legally obliged to carry out the instructions of his employer, without being able to freely manage his own time.
It is important to highlight how the subjugation of the so-called “overalls time” to the power of the employer can derive, explicitly, from company regulations or, implicitly, also from the nature of the clothing or the function that they must perform which, in fact, could determine an obligation to wear the uniform at the workplace.
In this regard, with Ruling no. 17635/2019, the Court of Cassation ruled on the time spent by the nurses of a local health authority in putting on and taking off their uniform (gown and protective mask), which is part of the working time even though it is not formally regulated by the employer, but because it is an obligatory, ancillary and preparatory activity for the performance of the work.
According to the Court, that guideline ‘represents a development of the previous guideline (entirely in line with the principle) and an addition to its reconstruction, with emphasis on the function assigned to clothing’.
This is also particularly relevant in the light of the current health emergency and the obligations laid down for activities not subject to suspension, including, in many cases, the obligation to equip their employees with personal protective equipment – masks, gloves, goggles, overalls, earmuffs – to reduce the risk of contracting or spreading the virus. In fact, it is clear that where employees are required to use the aforementioned PPE, it must be worn directly in the workplace, given the risk of contamination when worn outdoors.