What is (and what is missing) in the decree on compulsory vaccination for doctors and nurses. The analysis of prof. Pellacani
Draghi Decree and vaccination obligation for health professions and health care workers: what is there, what is missing and what is not entirely clear. Speech by Professor Giuseppe Pellacani, full professor of Labor Law at the University of Modena and Reggio Emilia
The decree in summary
The art. 4 of the decree law approved yesterday by the Council of Ministers introduces the obligation of vaccination for the prevention of SARS-CoV-2 infection for health professions and health professionals who carry out their activities in health and socio-sanitary structures and social welfare, public and private, pharmacies, parapharmacies and professional offices.
Vaccination is free and constitutes an essential requirement for the exercise of the profession and for the performance of the work performed by the obliged subjects.
The obligation is not indefinite, but is valid until the complete implementation of the national strategic plan of vaccines provided for by article 1, paragraph 457, of law no. 178 and in any case no later than 31 December 2021.
Those subjects are exempted for whom, due to specific and documented clinical conditions, vaccination may involve a danger to health, certified by the general practitioner. The exemption is valid until the risk situation ceases.
The tasks of the regions, autonomous provinces and local health authorities.
From an operational point of view, the implementation of the plan is entrusted to the regions and autonomous provinces, to which the professional associations and employers of health care workers must send, within five days from the entry into force of the decree, the names and the residence of the members or employees.
The region or the autonomous province must then verify, within ten days of receipt of the data, through the vaccination information services, the vaccination status of the interested parties and immediately report the names of the subjects who are not vaccinated to the local health authority of residence.
The local health company will therefore invite the interested party to produce, within five days of receiving the invitation, the documentation proving the vaccination, the presentation of the vaccination request, the documentation certifying the non-existence of the conditions for the vaccination obligation. or, finally, the reasons justifying its omission or postponement for health reasons.
Upon expiry of the aforementioned term, the local health authority must therefore formally and without delay invite the interested party (for whom the obligation exists) to undergo the administration of the vaccine and to transmit the vaccination certificate within three days of administration, with indication of the methods and terms for compliance.
Once the aforementioned terms have elapsed, if it ascertains the non-compliance with the vaccination obligation, the competent local health company will immediately notify the interested party, the employer and the professional order to which they belong.
THE CONSEQUENCES OF FAILED VACCINATION
Since, as mentioned, vaccination is an essential requirement for the exercise of the profession and for the performance of work services, the professional association to which it belongs, once it has received the information that the vaccination obligation has not been fulfilled, is required to communicate immediately the suspension from services or duties that involve interpersonal contacts or involve, in any other form, the risk of spreading the infection from SARS-CoV.
On the other hand, employers must assign the worker, where possible, to tasks, even lower ones, other than those indicated, which do not involve interpersonal contacts and do not involve the risk of spreading the infection from SARS-CoV, with the remuneration corresponding to the duties exercised, and therefore with a possible reduction in salary. When the assignment to different tasks is not possible, the worker is suspended without pay, other compensation or emolument, however named, until the vaccination obligation is fulfilled or, failing that, until the completion of the national vaccination plan and in any case no later than on December 31, 2021.
As in the more there is the less, it is reasonable to believe that it is also possible, for example, to resort to smart working, holidays or the recovery of unused leave.
A reasonable balance.
The decree acknowledges many of the requests coming from the world of health professions and the indications and suggestions of the experts, creating a reasonable balance between the collective interest in health and the individual interest in not being subjected to health treatments against their will, making the former prevail. but with adequate temperaments.
The vaccination obligation is in fact imposed only on the categories of workers most exposed to the risk of being infected and spreading the infection, it is limited to the strictly indispensable time frame, the possibility of refusal is foreseen in case of proven medical contraindications.
But something is missing …
The fair refreshment. The most critical aspect is represented by the failure to provide a "fair refreshment" in favor of the subject who, as a result of the compulsory treatment, should suffer damage to health, foreseen in all other cases in which the law requires vaccination and in any case required by the Constitutional Court.
… And something will require clarification.
Let's start with the recipients. The categories of workers subject to the vaccination obligation are identified in a rather precise way, on the basis of subjective and objective requirements that must be applied jointly.
From a subjective point of view, the decree refers to "health professions" and "health professionals". As reported by the Ministry of Health, the Italian State currently recognizes 30 health professions for the exercise of which registration with the respective professional associations is mandatory: surgeons and dentists; Veterinarians; Pharmacists; Psychologists; Chemists and Physicists; Biologists; Nursing professions; Midwives; Health Technicians of Medical Radiology and of the Technical Health Professions, Rehabilitation and Prevention; to these are added the health workers and auxiliaries of the health professions (massage physiotherapists, socio-health workers, dental practice assistants, dental technicians, opticians, but also masseurs, head lifeguards of hydrotherapy establishments, child care workers).
The list is therefore very long and the potentially interested parties are very numerous.
Not everyone, however, is obliged to get vaccinated, but only those who, from an objective point of view, work in public and private health, social and welfare structures, pharmacies, parapharmacies and professional offices.
In light of the combination of the aforementioned subjective and objective requirements, no obligation is therefore configurable for those who, while working in the "health, social, health and social welfare structures", "pharmacies, parapharmacies and professional offices" do not belong to one of the interested categories (not a "health care") or to whom, even if "health", works in contexts other than those provided for by the decree.
Furthermore, a systematic reading of the regulatory text shows that a vaccination obligation is configurable only for those in charge of services or tasks "that involve interpersonal contacts or involve, in any other form, the risk of spreading the infection from SARS-CoV" .
Therefore, due to the combination of all the aforementioned requirements, it is reasonable to assume that, for example, a hospital counter clerk, a pharmacy clerk, an optician working inside a hospital is excluded from the vaccination obligation. commercial operation, a dental technician who works only in his own laboratory without contact with patients, if so on.
THE NECESSARY CLARIFICATIONS
Doubtful situations, which would be well clear, are not lacking.
Think, for example, of the position of veterinarians: certainly falling within the legal provision where they operate within a professional office or in a veterinary health facility but not, strictly speaking, if they lend their business to a different subject external (for example a meat slaughtering company, a breeding farm or at home), although a similar risk is objectively configurable in these cases as well.
Or to (non-health) workers in laboratories in which Coronavirus-2 (SARS-CoV-2) is intentionally introduced into the production cycle, regarding which only a systematic interpretation inspired by the rationale of the special and general regulations on protection health and safety in the workplace leads to an affirmative answer.
There is also no reference to medical and dental students, to nursing students and to anyone else who works in the environments considered by the decree, carrying out activities similar to those of health professionals, but without yet having the qualification, which, once again, only one common sense reading leads us to believe that they are comparable to health professionals for the purposes of vaccine prophylaxis legislation.
OTHER "EMPTY" TO FILL
Among the "gaps" that it would be necessary to fill there is also that relating to the fate of workers excluded from the vaccination obligation for health reasons. In the light of the current regulations it would seem that they can continue to lend their business as if nothing had happened. In the presence of situations of risk to their health or to the people with whom they come into contact, it is also legitimate to ask questions. Can they be suspended, put on vacation or moved to different jobs? With what salary? How long? Until a clarification by the legislator, employers will therefore be forced to "navigate on sight", relying on common sense and the meager and uncertain general references on the subject (on which I take the liberty of referring to these two interventions ).
Finally, a clarification regarding the possibility, for the employer, to request the vaccination certificate at any time, and therefore also during the underwriting phase, would not have hurt. Moreover, in the light of the intervention of the legislator, the different indication of the Privacy Guarantor (for which a clarification intervention is expected) can be considered outdated and the aforementioned possibility, functional to the verification of an indispensable requirement for the performance of the service, must now be considered certainly admitted.
This is a machine translation from Italian language of a post published on Start Magazine at the URL https://www.startmag.it/sanita/cosa-ce-e-cosa-manca-nel-decreto-sullobbligo-vaccinale-per-medici-e-infermieri/ on Thu, 01 Apr 2021 11:01:07 +0000.