Vaccination obligation for health workers, what will the decree look like?

28 March 20213 years ago babelfish

Sars-CoV-2 vaccination obligation for healthcare professionals: the legislator is about to take an important step, but the ladder is long and the climb is steep. The analysis by Giuseppe Pellacani, full professor of Labor Law at the University of Modena and Reggio Emilia

The Presidency of the Council of Ministers and three Ministries (Justice, Health and Labor) are working to prepare a regulation that will impose vaccination against the Coronavirus (Sars-CoV-2) on the heads of health workers who come into direct contact with patients. And this to protect both categories of subjects: "It is not good", declared the Prime Minister Mario Draghi at the press conference "that unvaccinated health workers are in contact with the sick or are put in a position to be in contact with sick people".

This is undoubtedly good news, since we are finally trying to clarify an extremely debated issue and a source of serious uncertainty for employers but, on the one hand, the complexity of the intervention is such that it will require a constant monitoring and fine-tuning work (and therefore, probably, more than one subsequent "adjustment") and on the other hand, for the reasons that I will try to explain, it is desirable that this is only a first step, as this others follow.

But let's go in order.

First of all, it is right to ask oneself if a measure of this type is legitimate and to ask oneself what the decree can or cannot foresee.

We therefore clarify immediately that the orientation of the Constitutional Court in favor of the possibility for the legislator to impose a vaccination obligation is constant and that the margins within which the Government can move to achieve an adequate balance between the complex of interests and constitutional rights at stake ( community, workers and third parties) are quite large.

However, the compression of the freedom of self-determination (or the possibility of refusing medical treatment, such as a vaccine) in relation to the solidarity and collective dimension of the right to health requires that:

– the legislative choice is based on respect for the principle of proportionality, ie the minimum necessary sacrifice, and calibrated in relation to the evolution of the health and epidemiological situation and the results of research and medical experimentation;

– that the consequences for the health of the obliged party are temporary and minor, or in any case "normal to any health intervention and, therefore, tolerable" (which requires specific consideration of those subjects for whom, due to previous pathologies or other medical reasons, the vaccine may not be recommended);

– in any case, "the remedy of a fair relief" is ensured for the damage suffered in favor of the subject who, as a result of the compulsory treatment, suffers a health damage.

Correct, then, is the choice of the instrument – the decree law – since the conditions of extraordinary nature, necessity and urgency required by art. 77 of the Constitution. On the other hand, a dPCM which, as an administrative act, would not satisfy the legal reserve set by art. 32, c. 2 of the Constitution.

Also the decision to start from health workers, and above all from those who have a concrete possibility of coming into contact with people affected by Coronavirus (and who therefore face a significant risk of being infected) or with "fragile" people (towards of which more intense protections are required) is acceptable, but it is good not to forget that similar needs can also be found for other categories of subjects.

Think, for example, of the workers in laboratories in which Coronavirus-2 (Sars-CoV-2) is intentionally introduced into the production cycle, but also of those who work in contexts at risk, for themselves and for others, such as operators (including non-health workers) of residential homes or health residences for the elderly, employees of public services of primary collective interest, school staff. Therefore it is reasonable (and desirable) to believe that others will follow the announced decree.

As for the contents, it seems in every case advisable that the decree:

– clearly identify the categories of workers to whom the vaccination obligation is required;

– indicate the specific and certified medical reasons that make vaccination inadvisable or dangerous for health and that justify the choice not to undergo it, as well as the competent public bodies to verify the existence of the aforementioned reasons and to issue the relative certification;

– clarifies (in light of the different opinion expressed by the Privacy Guarantor) that the employer can request the vaccination certificate at any time, and therefore also during the underwriting phase;

– provides for dismissal as an extrema ratiio, or only where alternative solutions are not possible such as recourse to agile work, recourse to holidays (as it seems to be expected) and permits as well as, once these are exhausted, at the request of the interested party the suspension of the relationship for a maximum period equal to the period of behavior due to illness, without remuneration in the event of unjustified refusal and with a treatment paid by INPS (for example parameterized to the treatment due to illness), in case of refusal justified by specific and certified medical reasons;

– establishes that, once the aforementioned alternative measures have been exhausted, the employer may dismiss the worker for just cause (without notice) in case of refusal not supported by a valid reason and for objective justified reason (with notice) in other cases;

– finally, provides for a fair relief in favor of those who, as a result of the compulsory treatment, should have suffered damage to health.

However, “Take the first step with confidence. It is not necessary to see the whole staircase, just go up the first step "(Martin Luther King)

This is a machine translation from Italian language of a post published on Start Magazine at the URL https://www.startmag.it/primo-piano/obbligo-di-vaccinazione-per-gli-operatori-sanitari-come-sara-il-decreto/ on Sun, 28 Mar 2021 07:39:04 +0000.