by Stefano Trifirò
Already a few months ago, I faced the issue of the possible consequences for unvaccinated workers in the company, focusing on the one hand, the need for the employer to have to protect the privacy of employees and on the other the obligation to comply with art. 2087 of the Civil Code. This is a rule that imposes on the company the duty to adopt the measures that according to the particularity of the work, knowledge and procedures, are necessary to protect the physical integrity and moral character of the employees.
I concluded by arguing that the employee’s spontaneous decision not to get vaccinated could have resulted in his suspension from work in the case of impossibility of assignment to a different job. Without prejudice to the judgment of the company, the doctor may deem the worker unsuitable to the type of tasks to be performed and the risk of contagion existing within the working context for oneself and for others.
Now the ruling of the Court of Rome has intervened and deemed the suspension of the employee from work & salary who voluntarily decided not to get vaccinated, to be legitimate. The employer did not have the possibility to assign the worker to another job and hence the decision to suspend them until the restrictions linked to the spread of Covid-19 are lifted, or until a possible assessment of suitability (for example, the case in which the worker decides to undergo the vaccine). The grounds for the sentence was the employer’s obligation to comply with art. 2087 of the Civil Code.
The Court of Treviso in July 2021, held that the dismissal of an employee who had not informed the employer of having had (through a customer) an indirect contact with a positive Covid-19 person of a different address was illegitimate because in this specific case, the situation did not represent a serious danger to occupational safety.
Returning to the reasoning of the Court of Rome, which also refers to art. 20 of Legislative Decree no. 81/2008 according to which each worker must take care of their own health and safety and that of the other people present in the workplace affected by the effects of their actions or omissions, in accordance with training, instructions and means provided by the employer. Naturally, the judgment of the company doctor is fundamental for the purpose of suspension also from remuneration, since, on the basis of the case law that has already had the opportunity to express itself on this point in different hypotheses, if the competent doctor considers an employee unsuitable to performing the duties assigned by the employer, they may legitimately suspend him from them as well as from remuneration.
The ruling of the Court of Rome is relevant as it was issued in a period in which the hypothesis of the mandatory Green Pass in the company is under discussion. However, it is not the first case as there are already other precedents, even if in different work contexts, such as that of the Court of Modena. It is therefore evident that the jurisprudential position to date is in favour of the necessity of the obligation of the Green Pass in the company. Also in consideration of the fact that it has the advantage of being able to protect the privacy of the employee and allows the employer to guarantee suitable working conditions while protecting the health of all employees.
To date, the certifications authenticating vaccination have been deemed necessary for certain categories of workers (eg health professions pursuant to Article 4, Legislative Decree no. 44/2021). Furthermore, the Privacy Guarantor has issued various indications according to which the employer cannot ask its employees to provide information on their vaccination status;
the competent doctor can process the data relating to the vaccination of workers but cannot communicate it to the employer. If the competent doctor considers the vaccine an essential safety measure compatible with the duties performed by the worker, he can inform the employer about the suitability with any limitations of the individual worker for the specific job.
Furthermore, in the field of labour law there are two positions: one according to which the employer is responsible for taking all necessary measures to ensure a safe working environment and this would constitute a sufficient legal basis for the employer to impose vaccination. In support of this thesis was the judgment of the Court of Modena on July 23, 2021 and the Court of Verona on May 24, 2021. The other position is that the employer could suspend the no vax worker only in the presence of a suitability judgment of the competent doctor. Currently there is discussion about the request for the Green Pass for access to the company canteen. Pending developments, the above should be followed.