Italy's COVID-19 vaccination programme is underway, with health care workers and staff in care facilities at the front of the queue. According to a recent report published by the Health Ministry, more than 1 million people received the inoculation in the first two weeks of the nationwide vaccination campaign. This makes Italy one of the fastest-vaccinating countries in the European Union, but the roll out is still not going as quickly as hoped. The current supply of the vaccine is sufficient only to inoculate a small minority of eligible people in Italy and a definitive plan for effective and efficient distribution to the wider population does not yet exist. The increase in new infections at the same time as this developing inoculation campaign means that the situation is changing and evolving rapidly. Against this backdrop, companies are forced to look ahead. One of the topics at the forefront now for many employers is whether they can make the COVID-19 vaccination mandatory for certain employees in Italy.
Under art. 2087 of the Italian Civil Code, an employer is required to “take all necessary measures in order to protect the physical integrity of workers.” This obligation arises in the context of every employer-employee relationship. While art. 32, paragraph 2, of the Italian Constitution provides that “no one can be obliged to have a medical treatment, except by virtue of a provision of law,” this fundamental Constitutional right relates to the relationship between the State and its citizens, and is not directly applicable to the employer-employee relationship. It is possible to identify many instances where the Italian Constitution provides a particular freedom, but where the employer-employee agreement restricts such a freedom. For example, the Constitution grants all citizens the right to “freely circulate,” but employment agreements may regulate the movements of an employee during working hours. The point is therefore not whether an employee is free or not to decide whether to be vaccinated against COVID-19, but what are the consequences to the employer-employee relationship of the employee refusing the vaccination In particular this could have consequences on the employee’s ability to execute work duties under the employment contract and also potential liabilities for the company with respect to protecting the health and safety of other workers.
When the COVID-19 vaccine becomes available to a wider section of the public in Italy, and regardless of whether the Italian Parliament passes legislation that would make the vaccine mandatory by law, it is possible to imagine that some companies, based on the sector in which they operate, may want to require certain employees to get vaccinated against COVID-19.
A “Shared Protocol” regarding COVID-19 protection measures was established in Italy when the virus first started to spread in April 2020. This Protocol was useful and essential in providing guidance to companies regarding their operations in the midst of the most challenging times of the outbreak. Naturally, that Protocol did not contemplate vaccination, because at the time it did not exist. However, it was generally accepted that the measures provided for by the Protocol (mask-wearing, temperature-taking, distancing, cleaning and disinfecting, etc.) could be combined with “other equivalent or more incisive measures,” based on a company's “organisational peculiarities,” in order to avoid, where possible, suspensions and closures that could potentially result in unexpected costs and damages not only to the company, but to the general community and population. Moreover, the protection obligation provided for by art. 2087 of the Italian Civil Code provides that health protection measures must be updated from time to time, on the basis of "experience and technique." Now that scientific progress has made the COVID-19 vaccine available, it may be argued that, at least in certain cases, the Protocol should include mandatory vaccinations.
For many companies, at least in the short to medium term, and possibly even longer, it may be easier (and equally safe) to require remote working. Not all employees require direct contact with colleagues or clients or the general public to do their jobs well. Employers are also free to modify the duties of employees for organisational reasons, although it seems unreasonable to place an obligation on the employer to do so where an employee has unreasonably refused to get vaccinated. Finally, the mandatory use of personal protective equipment, as well as proper management of distancing in the workplace, can, in some situations, make the question of whether an employee is vaccinated less relevant. However, once it is established that a genuine need for vaccination exists for an employee to effectively perform their required tasks, the argument for mandatory vaccination becomes compelling. A failure to get the vaccine may in that case become a case of “lack of fitness to work.” Likewise, an unreasonable and unjustified refusal on the part of the employee to be vaccinated may be viewed as a disciplinary issue, in line with employment case law in Italy with regard to ensuring employees’ health and safety.
Clearly, the issue of mandatory vaccination goes beyond the individual employment relationship, given the substantial burdens on companies in terms of compliance with health and safety regulations and the civil and criminal liability that may befall a company that is in violation of its obligations.
In summary, these are challenging times that require taking responsibility at multiple levels: First, the State has to arrange for the procurement and distribution of the vaccine quickly and efficiently. Secondly, companies, workers and trade unions have to collaborate to create the conditions for a full return to the workplace in a safe manner, adopting reasonable mandatory vaccination rules for employees.