by Stefano Trifirò
In the race between prevention and contagion to stop the Delta variant from taking over, our Premier has said that everything still needs to be tackled with “determination, vigilance and attention” by means of vaccines and tracking.
In the meantime, Inail has prepared an interim indication plan for vaccinations in the company; the Privacy Guarantor has confirmed that the employer cannot directly ask the worker for confirmation of the vaccination etc. In addition, anti-vax doctors and nurses were suspended from work in health facilities and also in companies. It was necessary to intervene with suspensive or expulsive measures for the unvaccinated who put the workplace and other employees at risk.
Again, the Guarantor recently intervened, saying that it is the competent doctor who can learn about the worker’s vaccination status, merely informing the employer about the worker’s suitability for work. At this point, companies have asked us how to organize their workforce and be equally productive, without failing to fulfill their duty imposed by art 2087 of the Civil Code. This article states that the entrepreneur is required to adopt the measures that, according to the particular nature of the work, knowledge and procedures are necessary to protect the physical integrity and moral character of the employees.
If the worker is equipped with a Green Pass, always through the figure of the competent doctor, their data may be processed and depending on the vaccination status, can continue to carry out the same duties or equivalent duties in case of need. In the event that this is not practicable, we remind you that Article 20 of Legislative Decree No. 81/2008 (Consolidated Safety Act) according to which: each worker must take care of their own health and safety and that of the other people present at the worksite, upon which the effects of their actions or omissions fall, in accordance with their training, the instructions and the means provided by the employer, imposes a contractual obligation on the worker to comply with the above rules.
In the event of non-compliance with the precept of the law, it would be necessary to proceed with the disciplinary dispute, and possibly in the most serious cases, (eg refusal of vaccination and infection) dismissal, as the work performance has ceased due to an impediment attributable to the fact and / or the worker’s fault (which must always be proven).
In any case, the most critical situation is the one that follows from the refusal of the worker to be vaccinated, rather than from the declaration to the employer of having done it or not. In this case the employer (and the competent doctor where such figure exists), has a varied burden of assessing the job performed by the worker, the risk to which they’re exposed is that of other workers during the work performance, and to ensure that the whole company organization and protection of the working environment is not affected and is functional to safe and sustainable productivity.
Also as I said, the employer will have the obligation / burden to disciplinarily assess the impediment to the worker’s performance as non-compliance with all the consequences in the case, despite the suspension on layoffs. Therefore, with regard to vaccination, for the good coordination of the rules and the proper functioning of the company, the entrepreneur must rely on an expert lawyer and a medical data manager, but everyone may agree, could be the National Legislator (or the European one on other principles), pursuant to Article 32 of the Constitution according to which: the Republic protects health as a fundamental right of the individual and in the interest of the community, and guarantees free medical care to the poor. Nobody can be obliged to a specific health treatment except by law. The law cannot in any case violate the limits imposed by respect for the human person.
In the past, to fight the viruses of other pandemics: polio, measles, etc the legislator imposed vaccinations as mandatory for all citizens by law.