Can an employer require compulsory vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?
At the present stage, in the lack of an ad-hoc provision of law imposing COVID-19 vaccination, employers cannot require compulsory vaccination to employees, other than nurses and doctors.
In particular, according to Italian law, employers, in cooperation with the company doctor, considering his/her role in the assessment of the risk and in the health surveillance, may define to adopt any diagnostic measures deemed useful (such as a COVID-19 vaccination once available) to reduce the spread of the virus and to the health of employees, assuming that such measures may be available and reliable. However, generally speaking, such additional diagnostic measures could be carried out only on a voluntary basis.
However, it is worth noting that some Italian scholars have an opposite opinion. According to them, given that Italian law requires employers to safeguard their employees’ health and guarantee a safe work environment, such vaccination may be imposed.
Can employees refuse to be vaccinated? How does an employer need to balance its obligation to provide a safe work environment with an employee’s rights?
Yes, since pursuant to Art. 32 of the Italian Constitution health treatments cannot be imposed on anyone unless for provision of law and thus far there is no such law imposing Covid-19 vaccination.
In this case, according to certain scholars, on the basis of the provisions of the Italian health and safety code (Legislative Decree no. 81/2008), the employer could decide to change the duties or temporarily suspend the employee who refused to be vaccinated, upon indications of the company doctor.
In the event of a refusal, can an employee be dismissed for refusal to comply with the employer’s vaccination policy? Will the employee’s refusal constitute just cause for termination?
In Italy, this matter is the object of a strong debate and a legislative intervention would be necessary in order to have a clearer picture. Please find below the current different positions in a nutshell.
According to a first, stricter, approach, given that the employer is required by law to safeguard employees’ health, an unjustified refusal to be vaccinated could have disciplinary consequences (such as the dismissal of the concerned employee).
Pursuant to a second, more prudent approach, the employer should proceed as indicated above in the answer to question no.2.
Finally, according to some other scholars, considering that no provision of law imposes Covid-19 vaccination, the employer should respect the employees’ decision, not taking any disciplinary actions including the dismissal.
However, as of today, in the absence of a clear legislative framework, as well as of case-law on the matter, we may not exclude that a dismissal for just cause of an employee who refused to be vaccinated may be deemed unlawful.