Under Section 2087 of the Italian Civil Code, an employer must take all the necessary measures to protect the physical safety and wellbeing of its employees. However, Section 32, paragraph 2, of the Italian Constitution also provides that no one can be obligated to undergo medical treatment, except by virtue of a provision of law.
As a consequence, and in the absence of a law on the matter, Italians are free to decide whether or not to be vaccinated against COVID-19. But what happens in the context of the employer-employee relationship if an employee refuses to get vaccinated? Could this have an impact on the worker’s ability to carry out their duties? Would it give rise to potential liabilities for the employer that, as noted, must safeguard the health and safety of its other employees?
No termination, but suspension is possible
The answer seems to be different based on the sector in which the employee operates.
Indeed, according to the majority of doctrine, it would be difficult to argue that an employee can be dismissed for refusing to get vaccinated, at least as long as there is no national law making the vaccine mandatory for the entire population. Indeed, the common protocol regarding COVID-19 protection measures to be adopted by employers, issued by the government and the trade unions in April 2020, did not contain any indications about future vaccination (which seemed very distant at that time).
That said, an employer is allowed to suspend an employee from work activities and suspend pay as well if the unvaccinated employee is not fit to perform certain duties.
The essential role of the doctor
The assessment of an employee’s eligibility, as recently noted by the Italian Data Protection Authority (Garante), can be carried out only by the relevant doctor (medico competente) for the company, who is the only party entitled to process employees’ health data. Indeed, as the Garante also noted, an employer is not allowed to process employee health data, not even those relating to vaccination and not even during this extraordinary pandemic period. More specifically, the Garante determined that an employer cannot ask employees for confirmation that they have been vaccinated, nor for documents proving vaccination—not even with the consent of the employee, who is considered the weaker party in the relationship.
Thus, the relevant doctor is the only person who can assess whether, for the performance of certain duties, the non-vaccinated worker is fit to work or not. This assessment can be conducted upon request of the employer but without any interference from the employer.
Should the doctor declare the worker unfit to work, the employer will be entitled to suspend the employee from work and to suspend their pay, but only after having verified that there are no other different tasks for which the employee could be considered fit. The employee may challenge the doctor’s decision before the relevant medical office (ASL) of the territory where the company is located.
Vaccination as a condition for hiring
Is an employer allowed to ask for vaccination as a condition for hiring? The answer to this question also seems to be negative given the Garante’s position. Indeed, issues related to discrimination could arise—as examples, think of pregnant workers or individuals with certain religious beliefs.
Currently, an employee who contracts COVID-19 at work is entitled to receive compensation from INAIL (National Institute for Insurance against Accidents at Work). Recently, INAIL clarified that, in the absence of any legal obligation, compensation will be paid even to those employees who refused to be vaccinated.
Remote monitoring, distancing at the workplace, and protective equipment can be valuable aids in countering the pandemic; however, vaccination seems to be the strongest weapon when it comes to a true return to normal. The Italian Parliament, trade unions, employers, and employees should continue to cooperate in a joint effort to safeguard not only workplace health and safety, but their communities.