The theme is the most discussed these days: you can oblige to vaccination? Could the workplace be at risk for those who refuse the vaccine? The question has arisen for doctors, nurses and nursing home workers. However, it applies to everyone. According to the giulavorista Pietro Ichino “Article 2087 of the civil code obliges the employer to take all the measures … necessary to guarantee the physical and mental safety of the people who work in the company”. So yes to the vaccine requirement.
The magistrate says the same thing Raffaele Guariniello however, citing article 279 of the Consolidated Law on Safety at Work which requires the employer to make available “effective vaccines for those workers who are not already immune to the biological agent”.
To explain if it is really possible to get fired, we talked to the lawyer Arturo Maresca he is professor of Labor Law at the La Sapienza University of Rome.
Can the employer oblige the vaccine?
“It is true that the employer can submit to vaccines to prevent the risk of contagion. However, it is also true on the other hand that, according to a general rule with constitutional significance, no one can be subjected to medical treatments without his consent ».
What can be done then?
«If I refuse to get the vaccination, there is a temporary impossibility of carrying out the work performance. For the employer, the risk of having an unvaccinated person may not be manageable in the workplace. This can lead to a suspension due not to the choice of the employer, but according to the norm of the civil code for which in the moment of impossibility of execution of the service whoever has to perform it stops and whoever has to remunerate it can not pay “.
Can this be protracted over time?
“If the situation evolves and affects the organization of work, then there is the possibility of dismissal for justified objective reasons. This is what happens in cases such as that of the driver whose license is revoked. In my opinion it is not a dismissal for disciplinary reasons, but with objective reasons. The question remains highly debatable. It can be said that the employer has the power to impose vaccination because this is a safety obligation that I must fulfill ».
Is there a difference between private and public employer?
“There is no distinction between public and private. The public hospital and the private RSA are on the same level. And they are not the only activities involved. It applies to all shops and services starting from those we consider essential such as food and post offices. Here the protection of those who work comes into play, but also of the public they frequent ».
Has the pandemic changed the world of work forever?
«It would take years to experience what we have done in these months. The acceleration was huge. Agile work was used for a few days a month and it seemed like an exceptional thing and now we know that you can work remotely without particular consequences on the functioning of the work activity, some say even with greater productivity. The emergency agile work we do today will be different from what we will do after the pandemic, but the foundations have been laid. It is extraordinary that the subordinate worker has managed to manage his time and place of work independently ».
How else has it changed?
«The protection of the risk of contagion made with hundreds of protocols that have been created, the qualification of quarantine as a disease, but also that the positive worker can work remotely. These are things that we will use after the crisis ».
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