Future Manager Italy Insights
Author: Future Manager Research Center
The subject is very sensitive and it is also the cause of heated debates, however the discussion on ethical aspects in relation to a possible mandatory administration of an anti COVID-19 vaccine are on the agenda.
The implementation phase of a vaccine requires a long time, but thanks to the investment of huge economic resources and the incessant work done in the laboratories, the setup of vaccines has undergone a great acceleration. The EMA (European Medicines Agency) agreed, in December 2020, to start the vaccination campaign in Europe with the hope of reaching the so-called “herd immunity” as soon as possible. The vaccine is going to be administered to individuals with very specific priorities through two injections at least 21 days apart, with the primary purpose of preventing contagion.
Established that the vaccine against COVID-19 is a necessary measure to protect the physical integrity of employees, questions arise in business contexts that are quite difficult to answer, including: “Can employers force employees to be vaccinated?”, “Is it possible that an employee who refuses to receive SARS-CoV-2 prophylaxis be fired?” The debate is still open but there are regulations on the matter that can give an initial clarification on the issue.
Obviously, the regulations vary from country to country; in Italy, for example, according to Article 32 of the Italian Constitution: “Nobody may be forcefully submitted to medical treatment except as regulated by law. That law may in no case violate the limits imposed by the respect for the human being”. At present, it seems that the law discards the possibility of forced imposition of the vaccine, however it is necessary to make some clarifications. According to the Testo Unico sulla Salute e Sicurezza sul Lavoro (TUSL), it is the responsibility of the competent doctor to provide all the information on the consequences of a lack of vaccination, the importance of immunization and specify the advantages and disadvantages of the matter. Furthermore, art. 2087 of the Civil Code “obliges the employer to adopt all the measures suggested by science and experience, necessary to guarantee the physical and mental safety of the people who work in the company or in a Public Administration“, a rule that would seem to open a window towards mandatory vaccine, but obviously it is not possible to have only the generic Article 2087 to make decisions.
The regulatory situation is different for workers who cannot be vaccinated for a series of specific reasons. In this case, the employee can be removed and used for other duties, where possible, also remembering that the Rilancio decree (law decree n.34 / 2020) recognizes the right to smart working for fragile workers.
According to Article 26 of the TUSL, the employer who entrusts the execution of a work or a service or a supply to a contractor company or a self-employed worker, is not required to submit the contractor company’s employees or the self-employed worker with health surveillance and in particular vaccination, but he/she will have to prepare the D.U.V.R.I (Interference Risk Assessment Document) containing the measures against the risks of interference (including vaccination) and to supervise the effective observance of these measures by the contractor or self-employed.
Vaccinations may in the future be mandatory in order to perform a specific job (in the exercise of fundamental rights) or recommended in order to work safely in order to allow those who are more fragile and cannot be vaccinated to exercise the aforementioned fundamental rights. However, these are only mere hypotheses since at present it is not the Government’s intention to make vaccination compulsory and for all those who decide not to get vaccinated there are no major limitations. Yet we should not be surprised if we find ourselves having to prove that we have been vaccinated in places where the risk of contagion is very high.
What will be evaluated during the campaign will be the citizens’ adhesion rate this is because the law does not allow to sanction the employee who refuses the vaccine. It is the state’s duty to carry out information campaigns that leverage and clarify the importance of immunization. Going to say that it is up to the employer to supervise and, if necessary, take measures against the employee who has not undergone vaccination is a somewhat pretentious possibility.