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Law 104/1992 is one of the main Italian regulations supporting the inclusion of people with disabilities, granting employees the right to take paid leave to assist severely disabled family members. However, the improper use of this leave can lead to serious consequences, including dismissal for just cause and even criminal charges for fraud against public institutions.
Law 104 Leave: Who Is Entitled
Paid leave under Law 104 is granted to:
- Employees with a certified severe disability.
- Parents, including adoptive or foster parents, of severely disabled children.
- Spouses, civil union partners, de facto cohabitants, and relatives up to the third degree of a person with severe disability.
Entitlement is conditional upon the disabled person not being hospitalized full-time. During the leave days, the employee maintains regular pay and contribution coverage, while the employer advances the salary and later recovers the amount from INPS (the Italian Social Security Institute).
Abuse of Law 104 Leave: When It Occurs and the Consequences
Exercising the right to leave under Law 104 requires behavior in line with the principles of good faith and fair dealing. Using the leave for purposes unrelated to assisting the disabled family member constitutes an abuse of right, leading to serious disciplinary actions.
An employee who, while on leave, engages in personal or professional activities that violate the trust relationship with the employer may face:
- Dismissal for just cause,
- Criminal charges for fraud against INPS,
- Civil liability for damages.
Investigative Checks: Limits and Legitimacy
Employers can appoint private investigative agencies to verify the correct use of Law 104 leave.
Such checks are legitimate if:
- They aim to detect criminally relevant conduct (e.g., fraud against INPS),
- They do not interfere with the employee’s ordinary work activities.
Evidence gathered during investigations can serve as valid proof in disciplinary proceedings and justify immediate dismissal.
Supreme Court Interpretation: Flexibility in Management but Strictness Against Abuse
In recent years, the Italian Supreme Court (Corte di Cassazione) has adopted a consistent approach, combining flexibility in managing leave with strictness in punishing abuses.
The Court has clarified that Law 104 leave should be assessed on a daily basis and not according to working hours.
In other words, it is not necessary for the assistance to occupy the entire working day. It is sufficient that, on the leave day, the employee provides effective and predominant assistance to the disabled person.
With rulings such as Cass. No. 25290/2022 and Cass. No. 26514/2024, the Court specified that assistance may be rendered at any time during the day, with no obligation to match the employee’s normal working hours.
Furthermore, the Supreme Court has acknowledged that employees may carry out minor personal tasks during the day of leave, as long as these do not undermine the primary purpose of providing assistance. Short activities such as shopping or handling personal errands are considered compatible, provided that the main focus of the day remains on assisting the disabled relative.
In Cass. No. 24130/2024, the Court ruled that no abuse occurs if the employee briefly engages in personal activities, as long as a qualitative and quantitative assessment of the day confirms that assistance was predominant.
Abuse is deemed to occur when:
- No assistance is provided,
- Assistance is minimal or simulated,
- The employee dedicates the day primarily to unrelated personal activities.
Thus, the guiding criterion emerging from the Supreme Court’s case law is the prevalence of assistance over other activities during the leave day, along with strict compliance with the principle of good faith.
Conclusion
Using Law 104 leave is a fundamental right but must be exercised responsibly.
Employees must ensure that:
- Effective and predominant assistance is provided,
- Personal activities during the leave are limited and justified,
- Their behavior consistently respects good faith and loyalty.
At the same time, employers can legitimately carry out controls in the presence of concrete suspicions of abuse, to protect the company’s organization and public welfare systems.
