The Court of Cassation confirms that the gravity condition provided for by Law 104 is not required to stop night shifts. Here is who is entitled to it, what documents are needed and what the employer risks if he does not respect the protection
Anyone who assists a family member with a disability can refuse night shifts even if the assisted person is not in a “severe” condition envisaged by Law 104. The Supreme Court of Cassation recently reiterated this, confirming a principle already established in 2023 and closing the door to restrictive interpretations by companies. It is an important clarification for the over 7 million family caregivers in Italy, who, despite benefiting from Law 104, often find themselves having to demonstrate the degree of disability of the relative they care for, in order to be exempt from night work.
Law 104 and night work: what the law says and why the Supreme Court has returned to the topic
The right to exemption from night work for caregivers is provided for by Legislative Decree 66/2003 for those who “depend” on a family member with a disability recognized by Law 104. But for years the interpretations have focused on the difference in treatment depending on the level of disability. The case was triggered by the appeal of a railway technician from Bolognaexcluded from night shifts because he lives with his wife, with a disability but not in a serious condition. The company argued that the exemption was only valid in the presence of gravity, but both the Court and the Court of Appeal agreed with the worker, pushing the company to take the case to the Supreme Court. And the judges rejected the company’s thesis, confirming once again what was already decided in 2023: the law only requires that the family member have a recognized disability, without any serious condition. If the legislator had wanted to place this limit, he would have written it clearly, as he did for other protections (monthly leaves, extraordinary leave, limits on transfer). The Court also has clarified the meaning of “at your own expense”: with this formula we do not refer to the degree of disability of the family member, but to the bond of care and responsibility that unites him to the worker. You can therefore take care of a person even if they do not need continuous assistance.
Who is entitled to exemption and what documents are needed
To be entitled to exemption from night work the caregiver worker must have only two requirements: assisting a family member with a disability formally recognized by INPS and having an effective and continuous care relationship with that person, not just formal cohabitation. The Ministry of Labor has in fact clarified several times that exemption is not automatic for those who live with a disabled family member without actually taking care of their assistance. To activate protection, the worker must present some documents to the employer: the disability certification issued by INPS and the family status, which certifies the presence of the disabled family member in your household.
The protection concerns “night workers” in the technical sense, i.e. those who carry out their activity for at least seven consecutive hours including the interval between midnight and five in the morning (of which at least three hours in that period), for at least 80 days a year, according to the definition given by the applicable collective agreement.
How to request exemption and what risks the employer who does not comply with it
It is only the worker who decides whether to refuse night shifts: the employer cannot discuss this choice or ask for further evaluations. To assert the right, simply communicate the refusal in writing, at least 24 hours before the start of the shift. The right is valid for the entire duration of the condition that legitimizes it and, unless different organizational agreements are made, it does not need to be renewed every single shift: the initial communication remains valid as long as the disability situation of the assisted family member remains. If the employer still assigns the employee to the night shift despite the refusal, he risks a criminal sanction: arrest from two to four months or a fine from 516 to 2,582 euros, the same as for those who make an employee on maternity leave work at night.
