“The new national protocol for the creation of company plans aimed at activation of extraordinary SARS-COV-2/ Covid-19 vaccination points in workplaces proposes new challenges but also new responsibilities for employers that take part in the project”.
The attorney Vittorio De Luca, managing partner of Studio Legale De Luca & Partners specialised in Labour Law and Gdpr (General Data Protection Regulation), recalls that “vaccines are firstly healthcare treatments for which, as stated in the Constitution, only the government can require mandatory administration”.
Moreover, the protocol of 6 April 2021 allows employers to provide their assent to implementing company plans in their facilities to set up extraordinary Covid-19 vaccination points for workers who have requested them voluntarily and of their own free will. “Employers, who decide to participate in the initiative – explained the attorney -, have the opportunity to actively contribute to the national vaccine campaign through active involvement of their own resources and production site but they are required to ensure adequate guarantees to protection the personal data of the workers involved in the campaign, ensuring the security and confidentiality of the processed information and preventing any type of discrimination”.
In terms of the employer’s liability, the position held by the “company doctor” is significant. The doctor needs to be involved in the preliminary phase, providing the workers with adequate information on the advantages and risks connected with the vaccine and the specific type of vaccine administered, including setting up a preventive triage related to their health conditions and making sure to obtain an “informed consent” from them. And in the next phase: administration of the vaccine which, once performed, must be registered through the channels and instruments made available by the Regional Healthcare Services (Ssr).
“In light of this, it seems necessary, and appropriate, to examine the Data Protection Authority’s position on the topic,” De Luca added referring to the date of 17 February 2021 when the Authority published some FAQ on its website relating precisely to processing data regarding the Covid-19 vaccination in the workplace context. “The explanations from the Authority reiterate that the employer is not one of the subjects authorised to ask employees to provide information on their vaccine status or a copy of documents proving employees have been vaccinated,” De Luca explained that “the only subject authorised to know and process, confidentially, the healthcare data of workers is the company doctor”.
The attorney then underlined that “the employer may not even ask the company doctor to divulge the list employees’ names who participated in the vaccine campaign in progress. This cannot happen in the case where the subject participates in the campaign organised by the National Healthcare System, or in the case where the subject takes part in any extraordinary plan organised by the employer pursuant to the vaccine protocol signed last 6 April”. De Luca observed that “in compliance with the current legislation on occupational health and safety, the employer may only obtain a “fit to work” opinion for specific jobs and any instructions and/or limitations reported in it as defined by the company doctor”.
The attorney concluded: “The provisions of the new protocol signed by the Ministry of Labour and Social Policies and the Ministry of Health, in agreement with the social partners, proposes new challenges but, at the same time, new responsibilities for employers that manifest their willingness to implement the company plans contained therein, whose implementation, in any case, remains closely connected to evaluation of factors such as plan costs, which the employer must bear, as well as the availability of vaccines”.
Source Affari & Finanza – La Repubblica.
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