Amid an ongoing, heated debate over compulsory covid-19 vaccinations, the Italian government has approved the mandatory inoculation of healthcare workers in public or private health facilities, pharmacies, and medical practices. The move raises questions over whether other employers can follow suit and, if so, what happens if a worker refuses to be vaccinated?
Despite having three covid-19 vaccines to choose from – AstraZeneca, Pfizer, and Moderna – Italy has an entrenched anti-vaccination movement and the recent discovery of covid clusters in hospitals after health workers refused to take a vaccine has sparked an outcry in a country where the health emergency is still severe, explains Marcello Floris, a partner and co-head of Eversheds Sutherland’s employment and pensions team in Italy.
“A significant number of workers are very wary of vaccines in general and especially of covid-19 vaccines, on the grounds they have been developed in a very short time under the pressure of the health emergency,” he says. “In recent times, a wide-ranging debate has arisen in an attempt to establish whether or not employers are entitled to terminate a worker who refuses to take the vaccine.”
When it comes to the healthcare sector, however, the Italian government is brooking no argument, with Prime Minister Mario Draghi telling a press conference in March that it is “unacceptable that healthcare workers who are in direct contact with sick patients refuse to be vaccinated”.
Opposing legal principles in Italy have muddied the waters, however. Article 33 of the Italian Constitution provides that “no one can be obliged to undergo medical treatment except by a provision of law”, while article 2087 of the Italian Civil Code imposes an obligation on employers to adopt all necessary measures to protect workers and third parties in the workplace. Arguments over the interpretation of these two seemingly contradictory laws have been now addressed following a recent court ruling.
An outbreak of covid-19 in a care home in the town of Belluno, northern Italy, killed 15 residents between November and December 2020. Although the Pfizer vaccine was made available to healthcare workers at the end of December, eight out of the 80 care home staff refused to be vaccinated. The court upheld the Belluno home’s decision to place those employees on paid leave.
“The reasoning behind this decision was that if the claimant were to remain in the workplace it would mean that the employer was in breach of article 2087 of the Civil Code,” explains Sharon Reilly, co-founder, and managing partner of Reilly & Tesoro.
“Under said article, an employer is required to take all necessary measures to protect the physical wellbeing of its employees. These measures must be deemed to include the covid vaccine, given that its effectiveness in preventing [the] evolution of the disease is now proven. The action taken by the employer in the case in question was not to sanction the ‘anti-vax’ employee, but to protect him from possible contagion.”
It is off the back of this ruling that, on 1 April 2021, Italian legislators passed Decree-Law no.44 introducing mandatory vaccination until 31 December 2021 for all healthcare workers in public and private hospitals and healthcare facilities, social services, care homes, pharmacies, and GP surgeries. Health workers are exempt if they have a justifiable reason, such as a specific medical condition. A worker who refuses the vaccination, without good reason, can be assigned other duties.
A company doctor’s recommendation for certain categories of employees to be vaccinated may become a requirement for the job
“Such work duties can also pertain to an inferior level [following] categories established by the applicable collective bargaining agreement and, if this is the case, compensation can be also reduced, again [under] the provision of the applicable agreement. It has to be pointed out that unilateral reduction of salary is not possible in the Italian system,” explains Floris.
“If the employee cannot be assigned to different duties, they may be suspended without remuneration until the vaccination obligation is fulfilled or, failing that, until the completion of the national vaccination plan and in any case until no later than 31 December,” adds Emanuela Nespoli, a partner at Toffoletto De Luca Tamajo e Soci.
“It is worth noting that a refusal to be vaccinated does not result in disciplinary action, but a declaration of temporary unfitness for work, which at best leads to an alternative position and at worst to suspension without pay,” says Reilly. “Rather than creating an obligation, it seems that the intention of the legislature is to establish a principle of ‘incompatibility’ between healthcare workers being able to carry out their job and not being vaccinated: it thus follows that a condition of the job is that they are vaccinated.”
“The seriousness of the consequences set out in the decree for health workers who refuse vaccination is proof of the importance given by the government to fighting the health emergency,” says Nespoli. “In my opinion, these measures are more than justified, considering the urgency to give absolute priority to the right to health and safety of workers (both those who want to receive the vaccine and their colleagues), their patients and – more in general – the public.”
The enforcement of the decree may prove problematic, as it requires healthcare sector employers to provide the identities of their employees to local health authorities, which will then match these names against a list of individuals who are yet to be vaccinated.
“Such terms are very strict and a huge amount of bureaucratic work and possible mismanagement is likely to take place,” observes Floris. “Also, compliance with data protection rules seems difficult. Employees are under no obligation to inform the employer if they have been vaccinated but, as a result of this new procedure, an employer becomes aware of those workers who refused inoculation.”
Although the new provision only concerns certain categories of employers and cannot, at present, be seen as a blanket requirement across other sectors, the question remains as to whether all other workers are entitled to refuse to be vaccinated and, in cases of refusal, what will the consequences be from a disciplinary standpoint?
“At most, in compliance with article 2087, employers could be obliged to enhance the company’s health and safety provisions by facilitating access to vaccination for their employees,” says Floris. “Now, decree no.44 confirms that you cannot terminate an employee that refuses a vaccine without a valid reason, having introduced an obligation to vaccinate violation that is not sanctioned with dismissal for just cause.”
Reilly suggests the inoculation requirement might be used as a benchmark for behaviour in other sectors: “A company doctor’s recommendation for certain categories of employees to be vaccinated may become a requirement for the job. Refusal to be vaccinated would then render the worker unsuitable to perform their duties, leading to suspension without pay if the job cannot be done remotely and there is no alternative position available away from other employees and third parties.”
However, she offers cautions against employers considering this path: “They would be ill-advised to take disciplinary action against an employee who refuses to be vaccinated. It would be difficult to argue that his refusal constitutes a breach of contract, leading to sanctions, rather than simply a condition that he fails to meet.”
Whether the decree is constitutional remains to be seen, and many lawyers foresee litigation will be necessary to settle the matter once and for all. For Reilly, however, the distinction between “requirement” versus “obligation” is an important one and may well help to rebuff future challenges of unconstitutionality. “After all, bus drivers need to have a valid driving license to work, just as security guards need to hold a firearms licence. No one has ever dreamed of deeming such ‘obligations’ unconstitutional.”