For the judges, the remote risk, which cannot be eliminated, that even serious adverse events may occur on the health of the individual, does not in itself make the provision of compulsory medical treatment constitutionally illegitimate, but rather constitutes a right to compensation
Common health and the interest of the community always prevail over the right of the individual. This concept had been reiterated several times in the sentences of the Constitutional Court which also today reiterated it with the decisions on the vaccination obligation imposed on healthcare personnel during the Covid epidemic. Two sentences and a rejection due to inadmissibility that put a tombstone on the various issues that had been raised on the vaccination obligation and on the use of the swab to compensate for the lack of immunization among workers in hospitals and health facilities.
The remote risk of adverse events does not make the measure unconstitutional – And so with sentence 14 of 2023, editor Philip Patroni Griffifiled today, the Consulta considered the question of constitutional legitimacy to be unfounded, raised by the Council of Administrative Justice for the Sicilian Region. As anticipated with the press release of 1 December last, the Court held that the choice made by the legislator in order to prevent the spread of the virus, limiting its circulation, cannot be considered unreasonable or disproportionate, in the light of the epidemiological situation and the available scientific findings. In continuity with its jurisprudence on compulsory health treatments, the Court first of all reiterated that Article 32 of the Constitution entrusts the legislator with the task of balancing, in the light of the principle of solidarity, the individual’s right to self-determination with respect to his own health with the coexisting right to the health of others and therefore with the interest of the community. In application of these principles, the Court judged the doubts of constitutionality raised by the referring judge to be unfounded: in fact, faced with the current epidemiological situation, the legislator took into account the data provided by the national and supranational scientific-health authorities, institutionally in charge of the sector, as regards the efficacy and safety of vaccines; and, on the basis of these scientifically reliable data, has made a choice that does not appear unfit for the purpose, nor unreasonable or disproportionate. As can be seen from the comparative analysis, similar measures have also been adopted in other European countries.
In its pronouncement, in particular, the Court clarified – always in line with its own jurisprudence – that the remote risk, which cannot be eliminated, that even serious adverse events on the health of the individualdoes not in itself make the provision of compulsory medical treatment constitutionally illegitimate, but rather constitutes a title to indemnity. “Therefore, the reading that the referring court gives of the jurisprudence of this Court cannot be shared, which has, on the other hand, stated that health treatments, including vaccinations, must be considered lawful. mandatory, which, in order to protect collective health, may involve the risk of ‘undesirable consequences, prejudicial beyond the limit of the normally tolerable’ (judgment number 118 of 1996)”. Finally, as regards the complaint of contradictory nature of a discipline that requires consent in the face of a vaccination obligation, the Court noted that “the compulsory nature of the vaccine in any case leaves the individual with the possibility of choosing whether to fulfill or evade the obligation, responsibly assuming, in this second case, the consequences provided for by law”. “If, on the other hand, the individual – continues the sentence – fulfills the vaccination obligation, the consent, even in the face of the obligation, is aimed, precisely in respect of the intangibility of the person, at authorizing the material inoculation of the vaccine“.
The swab cannot replace vaccination – The sentence 15 of 2023, editor Stefano Petitti, also filed today, established that the provision, for workers employed in residential, social-welfare and social-health facilities, of the vaccination obligation for the prevention of Covid rather than that of undergoing the related diagnostic tests (so-called swab) , did not constitute an unreasonable or disproportionate solution to the available scientific data. In response to the questions of constitutional legitimacy raised by the ordinary courts of Brescia, Catania and Padua, the judges affirmed that the challenged legislation made a not unreasonable reconciliation of the individual’s right to freedom of care with the coexisting and reciprocal right of others and with the interest of the community, in a situation in which it was necessary to take initiatives that would allow to place healthcare facilities away from the risk of not being able to carry out their irreplaceable function. “The sacrifice imposed on health workers it has not gone beyond what is indispensable for the achievement of the public purposes of reducing the circulation of the virus, and has been constantly modulated on the basis of the trend of the health situation, moreover proving to be suitable for these same purposes”. Failure to comply with the vaccination obligation has had its effects on the level of obligations and rights arising from the employment contract, resulting in the temporary impossibility for the employee to carry out tasks involving interpersonal contacts or involving, in any other form, the risk of spread of infection.
Employers not obliged to assign different tasks – The ruling held that it was not contrary to the principles of equality and reasonableness also the legislative choice not to envisage, for workers in the health sector who had decided not to get vaccinated, an obligation by the employer to assign them to different tasks, unlike what was instead established for those who could not be vaccinated for reasons of health or for the teaching and educational staff of the school. The Court considered this choice justified by the greater risk of contagion, both for oneself and for the community, related to the exercise of the health professions.
Finally, the sentence decided that the provisions of the contested provisions – according to which the worker who had chosen not to undergo the vaccination was not owed, during the period of suspension, the salary or other compensation or emolument – it also justified the non-payment to the suspended employee of a maintenance allowance not exceeding half of the salary. The Court, in fact, deemed the position of the worker who did not intend to get vaccinated incomparable with that of the worker whose suspension from service has been ordered following submission to criminal or disciplinary proceedings, the latter cases in which the alimony can be dispensed. In particular, the Court excluded that the solution of charging the employer with the solidarity provision of a welfare provision in favor of the worker who had not intended to be vaccinated and who was, therefore, temporarily unfit to carry out the vaccination was constitutionally obligatory. of your work activity.
Finally, according to the Consulta, the question of legitimacy of the art is inadmissible. 4, paragraph 4, of decree-law 44 of 2021, as amended by legislative decree 172 of 2021, where, in the event of non-fulfillment of the vaccination obligation, the suspension from the exercise of the health profession is not limited to those services or tasks that imply personal contacts or which involve, in any other form, the risk of spreading the Covid-19. A principle established with sentence 16 of 2023, filed today, editor Augusto Antonio Barbera), the motivation for which was anticipated with the press release of 1 December 2022. The Lombardy Tar, called to decide an appeal by a psychologist who, due to non-compliance with the vaccination obligation, she had been suspended from practicing her profession, doubted the constitutional legitimacy of the aforementioned provision, considering it to be in contrast with the principles of reasonableness and proportionality, pursuant to article 3 of the Constitution. In the event of omitted vaccination, in fact, the contested provision would unreasonably extend the ban on carrying out the health profession to all activities that require registration in professional registers, even if said activities do not involve any risk of spreading Covid 19, since they can be carried out remotely, through the use of telematic and telephone tools. The questions were declared inadmissible due to a preliminary procedural profile, which excluded an assessment of their merits: the lack of jurisdiction of the regional administrative court that raised them. According to the jurisprudence of the Court of Cassation – which is the only judge competent to decide on jurisdiction – the dispute involving a subjective right – in this case, that of exercising the health profession – not mediated by the exercise of administrative power. Suspension from the exercise of the health profession it automatically follows from the ascertained non-fulfillment of the vaccination obligation, imposed as an essential requirement by law. The jurisdiction over the related disputes therefore lies with the ordinary judge, not the administrative one.