The Covid vaccine and the dismissal of the employee
If an employee refuses the Covid vaccine, can the company fire him? The opinion of the columnist Giuliano Cazzola after the intervention of Professor Giuseppe Pellacani
My friend, prof. Giuseppe Pellacani, in the article hosted by Start ("I'll explain why you can't fire those who don't vaccinate against Covid-19") outlined a very broad and argued framework regarding the legal aspects relating to the obligation (or not) to vaccination against Covid-19 as part of the employment relationship.
I must observe that, in my opinion, the title of the article (for which Giuseppe does not bear the responsibility) provides a unilateral representation of a more articulated opinion that has the merit of highlighting all reasonable doubts that would characterize both the choice of compulsory and the of voluntariness.
As for the mandatory option, even before the rules, it is made at least hasty if not unrealistic in the face of an operation for which the entire 2021 will not be enough. But, I believe, that the voluntary option, if introduced in general terms, is plagued by insuperable limits. The conclusions of the article by prof. Pellacani: "To avoid doubts and uncertainties of interpretation, and therefore to avoid transferring responsibility to companies, it is also appropriate that the legislator, if he decides to establish some vaccination obligation (hopefully, continuing the dialogue with the social partners started since first moment and profitably conducted throughout the management of the pandemic crisis), clearly determines, in addition to the conditions and scope of application, also the reasons that justify a refusal to undergo vaccination on the basis of the orientation that admits such a possibility in the presence of specific and certified medical reasons that make vaccination not recommended or dangerous for health ".
In my opinion, the key issue lies in having traced, by law, the contraction of the virus in the workplace or in progress to the type of accident (with the specification: from Covid-19), not only for the staff – as the health one – which works in contact with the virus, but for anyone who can demonstrate the etiology of the infection. As Pellacani points out, the violent cause of the accident (from Covid-19) could have put companies in a condition of strict liability, had it not been clarified that "For the purposes of protecting against the risk of contagion from Covid-19 , public and private employers fulfill the obligation referred to in Article 2087 of the Italian Civil Code by applying the provisions contained in the shared protocol regulating the measures to combat and contain the spread of Covid-19 in work, signed on April 24, 2020 between the Government and the social partners, and subsequent amendments and additions, and in the other protocols and guidelines referred to in article 1, paragraph 14, of the decree-law of May 16, 2020, n. 33, as well as through the adoption and maintenance of the measures provided for therein. If the aforementioned provisions are not applied, the measures contained in the protocols or sector agreements stipulated by the comparatively most representative trade unions and employers at national level are relevant ". In essence, the legislator deemed it necessary to provide a sort of authentic interpretation of the application of Article 2087 of the Italian Civil Code, precisely because of the concerns expressed by the business world.
The Colao Plan had raised the alarm: "The possible recognition of the infection from Covid-19 as an accident at work, even in non-health sectors, poses a problem of possible criminal liability of the employer which, in many cases, can be transformed in a brake for the resumption of activities. On the other hand, for the worker who is exposed to the risk of contagion for the journey he has to make to go to work and for staying for a long time in the workplace, perhaps in contact with the public, the treatment of the infection as an accident guarantees a level of protection, for themselves and their families, far greater than the treatment of simple illness. It is therefore a question of identifying a compromise solution that safeguards the two needs ”.
It is sufficient that the company is recognized the correct application of the “ Protocols '' to be exonerated from the responsibility of serious damage or death due to Covid-19 of one of its employees who – probatio diabolica – is able to demonstrate that he has been infected at work or when he went or returned? If so, it is up to the protocols and therefore to the government and the social partners to fill a huge void that – with the discovery of the vaccine – has been created among the precautionary measures, aimed at guaranteeing workers (in terms of safety and health ) but also employers (on that of criminal responsibility always lurking in the field of accidents at work).
It is known that article 2087 of the Italian civil code it is a "closing rule" of the accident prevention system; it can destabilize any business organization if a particularly serious injury occurs. The article does not identify limits to the search for safeguard measures. '' The entrepreneur – reads the article – is required to adopt in the running of the business the measures that, according to the particularity of the work, experience and technique, are necessary to protect physical integrity and moral personality of employees ''. Basically the entrepreneur is not freed from criminal and civil liability if he limits himself to respecting the laws in force on the subject of work safety; its horizon is that of experience and technology and the indications that derive from it even in the silence of the legislator.
Just think of the jurisprudence on the subject of exposure to asbestos. The dangerousness of asbestos (in implementation of specific community directives) was recognized with the law of 27 March 1992, n. 257, where rules have been dictated for the cessation of the use of asbestos and for its controlled disposal, as well as the ban on the extraction, import, export, marketing and production of asbestos. Yet many trials have been carried out (with fine sentences and compensation) against entrepreneurs over 80 who had used asbestos in their production cycles of previous decades and production activities already ceased, just because there were scientific studies that linked the use of this material to the formation of a pleural mesothelioma. Article 2087 cod. civ. allowed the retrospective application of criminal law.
Cases of accidents at work from covid-19 were not exceptional events in 2020. It is sufficient to go back to the accurate documentation of Inail according to which these cases of workplace infections reported as of November 30th amounted to 104,328, equal to 20.9% of the total number of workplace injury reports received since the beginning of the year. and 13% of the national infected reported by the Higher Institute of Health (Iss) on the same date. Compared to the 66,781 complaints detected as of 31 October, there were 37,547 more cases, of which 27,788 referred to November and 9,399 to October.
The "second wave" of Covid-19 infections had a more significant impact than the first also in the workplace. In fact, in the two-month period October-November, there was the peak of infections of professional origin, with almost 49 thousand reports of accidents (equal to 47% of the total) compared to the approximately 46,500 recorded in the two-month period March-April. The gap, however, is destined to increase in the next survey due to the particularly influential consolidation in the last month of the series. The deaths were 366 equal to approximately one third of the total deaths reported to Inail since the beginning of the year, with an incidence of 0.7% compared to the national deaths from Covid-19 reported by the ISS on the same date. Compared to the 332 deaths detected by the monitoring as of 31 October, 34 fatal cases reported to the Institute were 34 more, of which 20 in the month of November alone. Half of the deaths (50.3%) occurred in April, 33.1% in March, 6.0% in May, 5.5% in November, 1.6% in July and October, 1.4% in June and 0.3% in August and September.
What, then, in conclusion? When, in the context of the employment relationship, one of the parties – in our case the employee – evades a contractual obligation putting his health and that of his colleagues at risk, the employer – who is responsible for his safety – is not allowed to get away with saying: “I wanted to do the vaccination, but he refused ''. The worker could have good reasons, as such recognized by law or by protocols. But only those. Because, otherwise, the employer could make use of his disciplinary power and, in the end, terminate the relationship.
This is a machine translation from Italian language of a post published on Start Magazine at the URL https://www.startmag.it/economia/il-vaccino-anti-covid-e-il-licenziamento-del-dipendente/ on Sat, 02 Jan 2021 09:33:04 +0000.