COVID VACCINATION / The judgments that validate the obligation for health professionals

A recent ANSA launch announced that “according to the estimates of the commissioner for the Covid emergency, the army of ‘no vax’ operators would have over 45,000 professionals”, to be exact 45,753 professionals, equal to 2.36% of the health care category; of these, doctors would be 0.2%; and that the persons in charge of control are about to initiate the “sanctions” provided for by decree law no. 44, which entered into force on 1 April 2021 and converted into law no. 76 of 2021.

This rule introduced the obligation for health personnel to “undergo free vaccination for the prevention of SARS-CoV-2 infection”; and established that this vaccination “constitutes an essential requirement for the exercise of the profession and for the performance of the work performed by the obliged subjects”.

In other words, for doctors, nurses, OSS, veterinarians who do not provide vaccination, following a certain procedure involving the regions and local health authorities, “the suspension of the right to perform services or tasks that involve interpersonal contacts” is triggered. Subordinates could be offered the opportunity to carry out tasks that do not involve interpersonal contacts or, if this is not possible, they will be suspended from work without the right to pay. At the same time, the individual orders or registers to which they belong may initiate disciplinary procedures against the dodgers.

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This is a particularly afflictive form of coercion, which raises questions about the legitimacy of the obligation imposed and (consequently) of the sanctions that assist its observance. It should be remembered that in the event that suspension is to be incurred, the alternative could only be to challenge the provision before the administrative judge (if self-employed) or the labor judge (if subordinate), at the limit soliciting the scrutiny of constitutional legitimacy of the rules introducing the vaccination obligation.

In solving this question, the reading of three sentences can be helped, the contents of which are summarized below.

The first is a sentence of the Constitutional Court, of which the current Minister of Justice prof. Cartabia: with sentence no. 5 of 2018, the Court recognized – under certain conditions – the legitimacy of a state rule that imposes an obligation to vaccinate, because the “freedom of individual self-determination in the choices concerning health care” is a lower value than “the protection of individual and collective health”.

A similar conclusion was reached by the very recent judgment of the European Court of Human Rights, Grand Chamber n. 116/2021 of 8 April 2021 (VAVŘIČKA AND OTHERS v. THE CZECH REPUBLIC), which opposed some citizens to the Czech government in relation to a law by which that State imposed certain vaccination obligations. Also in this case, the ECHR has declared that vaccination obligations are compatible with European standards provided that:

– they are supported by “a pressing social need to protect individual and public health”, a need that, on closer inspection, has become even more urgent in the current global health framework;

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– are assisted by “safeguards and necessary precautions”, which may be information, judicial recourse, compensation measures, etc .;

– they are “measures proportionate to the legitimate aims pursued”; and again the recent Italian obligations seem proportionate to the aims pursued by the vaccination campaign in progress.

The timeliness of the sentence even appeared suspicious to some, as if the European Court wanted to give a caveat to possible future appeals against the vaccination obligations that European countries have introduced or are preparing to introduce following the ongoing epidemic.

Lastly, on May 19, 2021, the court of Modena filed a sentence of rejection against the appeal of two workers in the health sector who, due to their refusal to vaccinate, had been suspended from work and remuneration by their employer. . Moreover, this case had arisen well before the entry into force of decree no. 74, which this obligation introduces. Also on this occasion, the judge considered the behavior of the employer legitimate, on the basis that the worker is required to “observe precise duties of care and safety”, which make him a “subject legally responsible for his behavior”, also in the light of the constitutional canons of the right to health and the right to freedom of enterprise.

Moreover, the judge cited – in his decision – also the decree law n. 44 quoted at the beginning, considering it, even if not applicable, as an “exegetical element useful for the purposes of the dispute”.

The plausible conclusion of the examination conducted is that judicial initiatives to resist the obligation to vaccinate will not find acceptance.

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Let us now express some considerations: in truth, the provision of vaccination obligation clashes with conscience, also in the light of the little or very little experimentation than vaccines was made; the scientific evidence, however, shows a certain efficacy of them which seems to compensate for the potential risks to which one could expose oneself by vaccinating. The question could therefore be enclosed in the conflict (or – more subtly – in the natural and healthy friction) between individual liberties and collective liberties; and it is significant that a considerable number of citizens feel intolerable the compression, even if only potential, of their own interests for the benefit of super-individual interests.

And this impatience, which in hindsight manifests itself in all fields and at all levels, says something about the society we have helped to create.

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