Obbligo di vaccinazione e licenziamento

The distribution of the first doses of the COVID-19 vaccine has given hope for a return to normality.
However, a widespread vaccination campaign is required to ensure “herd immunity”.
Companies hoping to resume operations as soon as possible are wondering whether they can force their employees to undergo vaccinations. However, this question cannot be answered simply, given the lack of legislative clarity on the issue.

Can an employer make vaccinations compulsory?

In a nutshell, probably not.
Although the employer has a legal obligation, under Article. 2087 Civil Code, to ensure health and safety within the company, this obligation clashes with the right, guaranteed by the Constitution, of employee self-determination in matters of health.
According to Article 32 of the Italian Constitution, only a law can force a person to undergo health treatment.

While countries such as Denmark and some US states have already declared that they will introduce compulsory vaccinations, no decision has yet been reached in Italy.
Employers could avoid making vaccinations compulsory in the company, but could encourage vaccinations by simply preventing staff from entering the workplace if they cannot prove that they were vaccinated. This solution, however, is open to the risk of protests and litigation since it would be tantamount to an imposition of compulsory health treatment without a law expressly requiring it.

In this context, the only provision on safety in the workplace expressly states that employers must ensure the availability of vaccines 'effective for those workers who are not already immune from the biological agent present in the work' (art. 279 of the Consolidated Safety Act in the workplace). This rule, however, only provides that the vaccine should be made available to employees, and does not make it mandatory. It is true that the provision expressly provides for the removal of a violating worker from the workplace, but it should be considered, as mentioned above, that the removal of an employee or refusal to allow an employee's entry could clash with the considerations stated above.

The most cautious approach in this context is to encourage vaccinations by means of an appropriate company promotion campaign, perhaps involving experts in the field to answer questions and respond to employee doubts.

Can an employer dismiss an employee who refuses to be vaccinated?

Some international airlines have already declared that they will not allow passengers on board without a vaccination certificate.
This circumstance, given that it may spread to other sectors, poses an interesting question for employers wishing to implement a compulsory-vaccination policy. In other words: are compulsory vaccinations intended to protect colleagues and clients? Or are they intended to ensure that staff who are required to travel can do so and get their work done?

In this context, the dismissal of an employee who refuses to be vaccinated could be lawful if the employee's duties require that certain health precautions be observed, or if his work is rendered impossible by not being vaccinated. This hypothesis is pertinent for employees of clinics and private health facilities, but will also apply to all employees who are in contact with customers. In these cases, however, the possibility of relocating the employee to other tasks should also be considered. In other cases, it may be difficult to dismiss an employee, again because the vaccine is not compulsory. The main defence against such a censure would be an employer's duty to ensure the health and safety of all employees and customers, which would be put at risk if an employee refuses to be vaccinated. The strength of this defence is, of course, subject to judicial scrutiny.

In any event, it must be considered that the vaccination plan is far from clear and the availability of doses for employees is uncertain. As it now stands, an obligation to vaccinate could represent an excessively onerous constraint for employees, who may find it objectively impossible to be vaccinated quickly. Currently, the dismissal of an employee for refusing or failing to comply with a vaccination requirement would certainly be unlawful, but this may change if doses are readily available.

What does the future hold?

The success of the vaccination programme will depend on the effectiveness of its dissemination throughout the country and worldwide.
If companies decide to organise private clinics to vaccinate employees, the potential liability vis-à-vis side effects, which may represent a low risk but are still possible, must be considered.

In addition, employers should also ensure that they comply with the GPDR's privacy constraints when handling staff health data, since this information is particularly sensitive.
In the absence of a legislative provision mandating vaccinations, employers should consider a more cautious policy of actively promoting vaccinations among staff in addition to all occupational safety guidelines that have already been put in place. Making vaccines available free of charge, but on a voluntary basis, could also be successful, since it avoids the legal risks of imposing mandatory vaccinations.