With its order dated 19 May 2021, issued at the end of an interlocutory judgment, the Court of Modena held that suspension from work and pay of two non-vaccinated healthcare operators was lawful. The case arose from the refusal of two physiotherapists working in a nursing home to vaccinate against Covid-19, with the employer’s ensuing decision to suspend their employment and pay until they had been vaccinated. The employees brought an interlocutory action pursuant to Article 700 of the Italian Code of Civil Procedure, and the Judge confirmed the full legitimacy of the employer’s measure by reason of the legislation on health and safety at work, as well as with reference to the provisions of recent decree-law no. 44/2021, albeit this provision came into force after occurrence of the facts of the case. The logical-legal reasoning of the Judge is based on Article 20 of Italian Legislative Decree 81/2008 (so-called Consolidated Law on Safety) which, according to the Judge’s interpretation, imposes on the employee a legally relevant obligation of care and safety for the protection of his own psycho-physical integrity and of that of all third parties with whom he comes into contact at work, with the ensuing legal punishability of any non-compliant behaviour. To take a different view, and thus exclude such duty to cooperate on the part of the employee, would – as the Judge held – weaken the safety obligation which, under Article 2087 of the Italian Civil Code, is imposed on the employer. Hence, based on the analysis of the aforementioned rules, the law creates a system in which the employer and the employee are active players who are required to cooperate actively in creating a healthy and safe working environment. Given this premise, the trial when continued with the analysis of whether or not the employee was required to cooperate in terms of safety also where the precautionary measure to be adopted was vaccination.
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