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Can the employer use a tampon in the workplace as a mandatory preventive measure?

Can the employer use a tampon in the workplace as a mandatory preventive measure?
(Reading time: 4 - 7 minutes)

The answer is quick and concise: No! *

In relation to the administration of swabs and serological tests in the company, it is currently absolutely impossible for the employer to impose them. Let's see why ...

The shared protocol for updating measures to combat and contain the spread of the SARS-CoV-2 / COVID-19 virus in the workplace1 (in the latest version of 6 April 2021) clearly speaks of temperature detection, without mentioning the possibility of subjecting workers to antigenic, molecular and serological tests and only at point 12 of the Protocol is it foreseen that:

"The competent doctor, in consideration of his role in risk assessment and in health surveillance, may suggest (therefore do not oblige ed) the adoption of testing / screening if deemed useful in order to contain the dissemination of the virus..."

If it is true that these testing / screening strategies on employees can be considered not in contrast with the aforementioned Protocol, with Article 41 of the Constitution2 (private economic initiative is free. It cannot be carried out in contrast with social utility or in a way that could damage security, freedom, human dignity) and with article 2087 of the Civil Code3 (the entrepreneur is required to adopt the measures that, according to the particular nature of the work, experience and technique, are necessary to protect the physical integrity and moral personality of the employees in the business), recalled that Article 5 of the Workers' Statute4 provides for a veto on the introduction of the test as a mandatory anti-contagion measure:

"Checks by the employer on the suitability and infirmity of the employee due to illness or accident are prohibited. The control of absences due to infirmity can only be carried out through the inspection services of the competent social security institutions, which are required to do so when the employer requests it. The employer has the right to have the physical fitness of the worker checked by public bodies and specialized institutions governed by public law. "

Here we are back to the crucial point again: the employer cannot impose any testing / screening as a mandatory preventive measure in the workplace and only on the recommendation of the competent doctor or the health institutions in charge, in compliance with current legislation, testing / screening strategies can always and in any case always be adopted on a voluntary basis.

To be able to explain this point in a complete and transparent way, a small opposite position of the Ancona Labor Judge of last February 18, 2021 should be mentioned (we do not have the sentence but only journalistic information)5 who condemned a nurse who had refused to undergo the swab considering that the swab, unlike the vaccine, "is not a medical treatment and therefore does not take into account the right guaranteed by Article 32 of the Constitution". The test, rather, constitutes "a mere diagnostic relief, which can be assimilated at most to a medical examination and, in all appearance, devoid of any suitability to affect the physical integrity of the worker" but it should be remembered that in addition to being a minority position, the nursing profession has a specific biological risk of the duties performed different from any other type of work.

Therefore, if we want to add this exception as well, we could rephrase the answer as follows: the employer cannot impose any test / screening as a mandatory preventive measure in the workplace and only on the recommendation of the competent doctor or health institutions in charge, in compliance with current legislation, testing / screening strategies can always and in any case always be adopted on a voluntary basis, although strongly recommended for some very restricted work categories in which there is a biological risk as a specific risk of the tasks performed.


The privacy issue linked to tampons and tests in the company

The privacy issue in relation to the treatment of health data is not secondary at all. In fact, if, as we have seen, the detection of the temperature can be treated according to the provisions of the anti-contagion protocols and according to the position taken by the Guarantor also in its FAQ5 (it is specified that the Garanrte has expressed its opinion on the detection of the temperature but it is absolutely forbidden to archive the data as a form of monitoring), if the employer, on a voluntary basis, adopts tests / screening on employees, how would he manage the health data ? Given the current legislation, the only legal basis that can be used today is that of free, specific, express and unequivocal consent, or the voluntary basis according to which the worker agrees to the processing of data as sanctioned by article 4 paragraph 11 of the GDPR - Regulation general data protection (EU / 2016/679):6

"Any manifestation of the free, specific, informed and unequivocal will of the interested party, with which the same expresses his / her consent, by means of an unequivocal positive declaration or action, that the personal data concerning him / her are being processed"

We remind you that this article is dated 4 August 2021 given the current legislation in force, we will monitor and update it if the legislation changes.


Pad for show workers

With DPCM March 2, 2021, a series of restrictions related to regions, colors and so on have all been introduced but in the annexes of this DPCM, precisely annex 26 to point 22 it says that:

"Provide periodic control of workers through specific tests to verify the infection. Antigenic pad for artists and workers 48 hours before the start of production (including the entire rehearsal period), to be repeated every 72 hours for the entire duration of production itself. "

The absurd thing is that this DPCM, in its article 57, set the deadline to 6 April 2021 but with the Law Decree 44, the famous decree on the obligation of sanitary workers, in article 1 paragraph 1, it is said that:

"1. From 7 April to 30 April 2021 (the day after the expiry of the aforementioned Prime Ministerial Decree), the measures referred to in the provision adopted on 2 March 2021 are applied ..."

The Law Decree n. 44/21 was then converted with amendments by Law May 28, 2021, n. 76 (in GU 31/05/2021, n. 128).

Note that the buffer every 72 hours for show business workers is not, as mentioned, in the Prime Ministerial Decree of 2 March 2021 but in its attachment 26. The set of attachments has 299 pages and point 22 of attachment 26 is a page 286!

With a highly contested Decree Law, the one on the vaccination obligation of health workers, converted into law with strong public pressure, the provisions not so much of the Prime Ministerial Decree of March 2, 2021, but the provisions contained in a line of 299 were extended "forever" pages of its attachments.
I remind everyone that chatting at the bar we can say that this rule is illegal, but in fact it exists and applies and the sanction must be contested and the law dismantled in court knowing that they can issue a new decree making your action potentially vain. Ugly? Yes, disgusting, but if you face the current situation you need to have a pessimistic eye because this is Italy today, devoid of rights and unable to be clear and logical in its rules. It is not explained how an entertainment worker can have a specific biological risk for his / her job and very heavy doubts remain in terms of privacy.


Sources:

  1. https://www.salute.gov.it/portale/nuovocoronavirus/dettaglioContenutiNuovoCoronavirus.jsp?lingua=italiano&id=5383&area=nuovoCoronavirus&menu=vuoto
  2. https://www.senato.it/1025?sezione=122&articolo_numero_articolo=41
  3. https://www.gazzettaufficiale.it/atto/serie_generale/caricaArticolo?art.progressivo=0&art.idArticolo=2087&art.versione=1&art.codiceRedazionale=042U0262&art.dataPubblicazioneGazzetta=1942-04-04&art.idGruppo=262&art.idSottoArticolo1=10&art.idSottoArticolo=1&art.flagTipoArticolo=2
  4. https://www.brocardi.it/statuto-lavoratori/titolo-i/art5.html
  5. https://www.garanteprivacy.it/temi/coronavirus/faq
  6. https://www.altalex.com/documents/news/2018/04/12/articolo-4-gdpr-definizioni
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