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Can the employer impose the vaccine on the worker based on the current regulatory provisions?

Can the employer impose the vaccine on the worker based on the current regulatory provisions?
(Reading time: 3 - 6 minutes)

This article does not deal with the vaccination obligation imposed on healthcare personnel. To learn more about the issue of the obligation for health professionals, you will find a dedicated section on the visible site here .

The answer is quick and concise: No!

To answer this question, we will first try to list those rules that presage an affirmative answer, simultaneously showing their non-applicability.

Article 2087 of the Civil Code (Protection of working conditions) 1 states that:

"The entrepreneur is required to adopt the measures that, according to the particular nature of the work, experience and technique, are required to protect the physical integrity and
moral personality of employees. "

Article 41 of the Constitutionstates that:

"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. The law determines the appropriate programs and controls because economic activity is public and private can be addressed and coordinated for social purposes "

If these two articles portend that the employer may require vaccines as a requirement for the employee, Article 32 of the Constitution3 is very clear on the subject:

"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 indigent.
Nobody can be obliged to a specific health treatment except by law. Under no circumstances can the law violate the limits imposed by respect for the human person. "

The answer here is clear: in the absence of a legal provision, the employer can NOT oblige the employee to ANY medical treatment.
Let me be clear, we are not listing the reasons why we are opposed to any health obligation and we have not begun to deal in depth with the part of Article 32 which says that "... the law cannot in any case violate the limits imposed respect for the human person ", because if you are faced with a request to that effect from the employer, the only thing to answer is: is there a national law that obliges me to that health treatment? No, fine.

However, we can go even more in detail and reading Title X of Legislative Decree no.81 / 200 (Exposure to biological agents)4, Article 279 provides that:

1. If the outcome of the risk assessment reveals the need, the workers exposed to biological agents are subject to the health surveillance referred to in Article 41.
2. The employer, on in accordance with the opinion of the competent doctor, takes special protective measures for those workers for whom special protection measures are required, including for individual health reasons, including:
to theprovision of effective vaccines for those workers who are not already immune to the biological agent present in the processing, to be administered by the competent doctor; (...)

As can be clearly seen, in the absence of legislation that obliges the employee, having heard the opinion of the competent doctor and not because he decides it, the employer can make vaccines available as a protective measure for the employee but only as a possibility and not as an imposition.


The privacy issue linked to employee vaccination

Under the privacy aspect, another essential issue arises: the employer cannot be informed about personal and particular (formerly sensitive) data concerning the health sphere of the worker and such data can only be managed only by the competent doctor, on the basis of the health protocol relating to the specific task. As seen in our article on tampons on the farm5, to date the shared protocol for updating the measures to combat and contain the spread of the SARS-CoV-2 / COVID-19 virus in the workplace (in the latest version of April 6, 2021), only the faculty of employer to take the employee's temperature upon entering the company and does not mention the possibility of subjecting workers to antigenic, molecular, serological tests or vaccination.

The competent doctor plays an extremely delicate role in this situation, especially in relation to communications to be addressed to the employer. In fact, the Privacy Guarantor has recently expressed itself on the vaccine issue, publishing some FAQs on February 17, 20216 in this regard and it is very clear that the competent doctor may communicate to the employer only any non-suitability for work and no one else given as objective or subjective reasons for not undergoing the vaccine. We quote from the FAQ:

"NO. The employer cannot ask its employees to provide information on their vaccination status or copy of documents proving the vaccination against Covid-19. This is not allowed by the emergency provisions and by the regulations on protection of health and safety in the workplace.
The employer cannot consider the processing of data relating to vaccination on the basis of the consent of the employees lawful, since consent cannot in this case constitute a valid condition of lawfulness due to the imbalance of the relationship between the owner and the interested party in the working context (considering 43 of the Regulation). "

The employer cannot ask the employee for any information regarding the employee's vaccination, nor can it collect employee vaccination certificates and even if the employees give their consent to this collection., while the competent doctor must process this information in compliance with the current provisions of articles 18, 25, 39 paragraph 5 and 41 paragraph 4 of Legislative Decree no. 81/2008.7

With a new intervention on March 1, 2021, the Guarantor also specified that it is not possible to request vaccination passes to attend work environments or use certain work services,8 but we will allocate a more in-depth article on the subject.

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.


Sources:

  1. 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
  2. https://www.senato.it/1025?sezione=122&articolo_numero_articolo=41
  3. https://www.senato.it/1025?sezione=121&articolo_numero_articolo=32
  4. https://www.lavoro.gov.it/documenti-e-norme/studi-e-statistiche/Documents/Testo%20Unico%20sulla%20Salute%20e%20Sicurezza%20sul%20Lavoro/Testo-Unico-81-08-Edizione-Giugno%202016.pdf
  5. https://www.corvelva.it/area-legale/covid19-co/il-datore-di-lavoro-puo-adottare-come-misura-obbligatoria-preventiva-un-tampone-sul-luogo-di-lavoro.html
  6. https://www.garanteprivacy.it/temi/coronavirus/faq#vaccini
  7. https://www.gazzettaufficiale.it/eli/id/2008/04/30/008G0104/sg
  8. https://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/9550331
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