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Critical Aspects of the new legislative provisions on Digital Medical Certificates

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In compliance with article 25 of Law no. 183/2010, the electronic data transmission to INPS (the Italian National Social Security Institute) of private sector employees’ illness certificates has become obligatory as of 13 September 2011.

The aforementioned provision has, in fact, also extended to the completion and electronic data transmission media of private sector employees’ illness certificates, which Legislative Decree no. 165 dated March 2001 had made obligatory for public sector employees.

The legislator’s intent is clearly that of ensuring that absences – on account of illness in both the private and public sectors – are monitored and controlled in an efficient manner with the help of I.T. technology.

As circular no. 4/2011 of the Italian Employment Ministry has clarified, the new provisions exempt employees from the obligation of sending, within the two working days, illness certificates via registered mail to employers and to INPS.

Pursuant to the new legislative provisions, the doctor who ascertains that a public or private sector employee is temporarily unable to work, must fill in – with the aid of an IT system – an illness certificate, in compliance with Ministerial Decree dated February 26, 2010.

The doctor must then send such certificate to the Sistema di Accoglienza Centrale (the Central Acceptance System, hereafter called SAC, which in turn is regulated by Ministerial Decree dated February 26, 2010 that was issued in accordance with the provisions of article 8, paragraph 3 of Prime Ministerial Decree dated March 26 2008 containing the technical rules on the electronic data transmission of private sector employee illness certificates).

SAC then forwards such certificate onto the employer and to INPS.

In order that the doctor may use the above-described illness certificate electronic data transmission service, he or she must have the necessary authorization, consisting in system access credentials composed of an identification code (i.e. his or her Italian Tax Code) and a numerical code (PIN).

The PIN code is generated automatically by SAC after the doctor’s identity has been authenticated on the basis of his or her Tax Code and the password delivered to the latter in a closed envelope by the territorially competent local health authority (ASL).

Having said this, the instruments with which employee illness certificates may be transmitted currently are:

i) commercial software, provided that it has the capacity to dialogue with SAC;

ii) the web application made available by SAC;

iii) a call center using an automatic reply, which can be reached at the free phone number 800 013 577.

The obligatory nature of such procedure is, moreover, reinforced by the fact that those doctors who do not comply with the aforementioned provisions commit a disciplinary offence that can lead, in the event that such conduct is reiterated, to their dismissal (or, for practitioners who work within the Italian Health Service, the termination of the latter’s contract with the Italian Health Service).

In any event, the electronic data transmission of the illness certificate by the doctor exempts – as stated above – the employee from sending such certificate to INPS and to his or her employer, but not from the obligation of informing the latter of his or her absence or of the illness certificate identification number given to him or her by the doctor.

The employee is, to this effect, put in the condition of being able to visualize the illness certificate in question through the INPS I.T. system (after his or her identity has been authenticated through his or her tax code and through the illness certificate’s protocol number issued by the doctor) or through a request made by the employee that such certificate be sent to his or her certified e-mail address.

The visualization of the illness certificate through the INPS I.T. system may take place, therefore, after the employees’ credentials (made available by INPS) have been authenticated (as described in INPS circular no. 60 dated April 16, 2010) or after having had such certificate sent to the employee’s certified e-mail address (as described in INPS Circular no. 119 dated September 7, 2010).

In the event that the doctor is, however, unable to use the electronic data transmission service, the employee will have to submit a hard copy of the illness certificate to INPS and to his or her employer in the traditional manner.

In such an event, the employer will, for monitoring purposes, have to give notice – via certified email – to the certifying doctor’s local health authority that the same employer has received a hard copy of the certificate (instead of an electronic copy thereof).

Having said this, legal scholars who have commented the aforementioned reform, have analyzed the legal validity of the filled in and transmitted illness certificates.

There are, in relation thereto, two contrasting positions:

a) Anorc, and in particular its Chairman Andrea Lisi, is of the opinion that the I.T. authentication of the doctor’s identity through the latter’s Tax Code and PIN cannot, in any manner whatsoever, be considered the equivalent of the affixing of a digital signature;

b) the former Minister Renato Brunetta is, on the contrary, of the opinion that the procedure provided for under the law is fully compliant with the Italian Digital Administration Code (hereafter C.A.D.), given that it guarantees the certain identification of the doctor in question.

The question is very controversial and needs to be analyzed in depth, in particular in terms of understanding whether the doctor’s authentication to gain access to the INPS system is capable or not of attributing full legal validity to the medical certificate.

The reply can only be found in the provisions contained in the C.A.D. governing I.T. documents and electronic signatures, and in particular article 20, paragraph 1-bis of the C.A.D, according to which the question of whether an electronic document can satisfy the requirement that a document be in writing and whether or not it has probative value is freely assessed in legal proceedings, also taking into account the objective features thereof in terms of its quality, safety, integrity and the non-amendable nature thereof, without prejudice to the provisions set forth in article 21.

In other words, the C.A.D., in its current version, provides that the formal and evidentiary value of electronic documents containing a simple electronic signature or no signature at all is freely assessed by the judge on the basis of pre-determined parameters (i.e. the safety, integrity and non-amendable nature thereof) fixed by the law.

The full evidentiary of value of electronic documents is – provided that the technical rules established by Ministerial Decree 30-03-2009 are complied with and the identifiability, integrity and non-amendable nature thereof are evident – guaranteed, on the contrary, in the event that an advanced electronic signature, a digital signature or a qualified electronic signature is affixed thereto.

It follows therefrom that electronic data transmission’s real nature must be analyzed in depth, with particular attention being paid as to whether the documents sent in this manner may be classified as documents signed with advanced, qualified or digital electronic signatures (since the full evidentiary and formal legal value thereof could only be affirmed in the latter case).

To this effect, we must point out that – in the light of the most recent developments in Italian lower court case law – the use of an electronic authentication procedure would not even seem to give rise to a document containing a simple electronic signature since there would not appear to be a logical connection between the validating data (User and Password) and the contents of the single message to be validated (cfr. Court of Rome dated 27-05-2010; in this sense, cfr. also Court of Prato dated 15-04-2011, Court of Brescia dated 11-03-2008; Regional Administrative Tribunal Calabria no. 98).

In any event, it can be stated that the electronic medical certificate analyzed herein is a relevant electronic document as provided for under article 20, paragraph 1-bis C.A.D., without prejudice to the fact that real effects thereof – in terms of the formal and evidentiary vale thereof – must necessarily be freely assessed by a judge.

It must be pointed out, moreover, that illness certificates may be sent to the employee’s e-mail box (generally in a .pdf format). In such an event, the latter would, in fact, receive an unsigned electronic document (with all the limitations in terms of the evidentiary value thereof which have been analyzed above).

By way of conclusion, we can state that – without prejudice to the fact that the electronic data transmission procedure for employee illness certificates is an important step forward in Italy’s innovation process, it would be preferable to render obligatory the affixing of the doctor’s digital signature (or an advanced or qualified electronic signature) for the purpose of making the electronic illness certificate fully valid from a formal and evidentiary point of view pursuant to article 21 of the C.A.D.






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