Green pass to access the workplace is not conceivable in the absence of compulsory vaccination (Guida al Lavoro de Il Sole 24 Ore, n. 33/34 – Vittorio De Luca, Debhora Scarano)

In an internal letter of the director general sent by e-mail to the directors of the system’s local and sectoral associations, Confindustria expressed its favourable opinion on the Covid-19 green certificate (better known as green pass) to access workplaces.

According to the position taken by Confindustria, the presentation of the green certificate should be part of the obligations of diligence, fairness and good faith on which the employment relationship is based. Consequently, the employer, where possible, could assign the non-vaccinated worker to tasks other than those typically carried out and pay them accordingly. If this is impossible, the employer should be allowed not to admit the employee to work, with the suspension of pay if they are removed from the company.

Together with the safety protocol updated on 6 April and the protocol on vaccination in the workplace signed on the same date, such an initiative aims to protect workers’ health and safety and the production process. Among other things, the proposal would be justified given the serious concern about a possible third pandemic wave that could lead to a new work shutdown and the consequent need for yet another extension of the Covid-19 social safety nets.

However, legally, this has several critical issues.

First, as for individual rights, it is necessary to consider Article 32 of the Constitution on the “right to health”, which represents a kaleidoscope of multiple forms of health protection.  The article in question firstly states that “the Republic shall protect health as a fundamental right of the individual and in the interest of the community”, and then specifies that “no one may be obliged to undergo a given medical treatment except by provision of law”.

This constitutional provision protects health as a fundamental right of the individual and as an interest of the community. It allows the imposition of medical treatment if intended, as specified by the Constitutional Court, “to preserve the state of health of the person subject to it, and the state of health of others” (see ruling no. 5/2018 of the Constitutional Court).

Continue reading the full version published in Guida al Lavoro of Il Sole 24 Ore.