by Giovanni Costantino
19 LUG –
Dear Director,
as you will have seen, the decision of the professional associations to consider the health workers recovered from Covid19 exempt from vaccination for six months, instead of three months, has caused a lot of uproar. This has thrown confusion among the operators in the sector, generating not a few operational uncertainties.
The issue is really hot. As is well known, the problem arises from the correct interpretation of the Legislative Decree of 24 March 2022, n. 24, which provided for, for healthcare workers and healthcare workers suspended for violation of the vaccination obligation and who have contracted the virus, “the temporary termination of the suspension, until the expiry of the term in which vaccination is deferred based on the indications contained in the circulars of the Ministry of Health “.
Certainly, the reference to a circular by the law does not help to guarantee legal certainty. However, at the dawn of the entry into force of the decree, the main interpreters unanimously referred to the circular of the Ministry of Health of 3 March 2021 (0008284-03 / 03/2021-DGPRE-DGPRE-P), which set three months (90 days from the first positive swab) the minimum distance between the infection and the (first) vaccination.
The indication of 90 days, in fact, did not seem (and, in my opinion, does not even seem now) in contradiction with the different recommendation contained in the subsequent ministerial circular of 21 July 2021, according to which, in the event of Covid infection19, it is It is possible to complete the primary vaccination course with a single dose to be administered preferably within six months and, in any case, no later than twelve months.
In this case, in fact, the Ministry of Health was dealing with a different problem, namely that of the possibility of completing the entire primary vaccination cycle with a single dose, instead of two.
And on the other hand, the very rationale of the “deferral” is to protect the health of the vaccinator, and not to ensure that the obligation is fulfilled in different ways.
This interpretation, among other things, was explicitly confirmed by the Ministry of Health.
In fact, with a note dated 29 March 2022, the Head of Cabinet of the Dicastery, taking up large excerpts from the elaborate ad hoc prepared by the Legislative Office, clarified that the vaccination obligation is deferred:
– for 90 days from the date of the positive diagnostic test in case of SARS-CoV-2 infection in subjects never vaccinated and in case of subjects who contracted SARS-Cov-2 infection within 14 days of administration of a bidose vaccine dose;
– for 120 days from the date of the positive diagnostic test in case of infection following the completion of a primary course.
Moreover, albeit implicitly, the same interpretation was further confirmed by the Ministry with the very recent circular of 11 July 2022, with which it was reiterated – with reference to the fourth dose – that it can be administered as long as a minimum interval of at least 120 days from the last post-recall infection (date of positive diagnostic test).
Many have wondered, then, why such a position on the part of the professional orders.
The problem, in fact, had already been in the air for some time. However, the motive was offered by the administrative judiciary. The Lombardy TAR (Milan and Brescia offices), in fact, with two “twin” ordinances, deemed the six-monthly term referred to in the circular of July 2021 to be applicable, rather than the quarterly one. The Orders, therefore, fearing compensation causes, immediately took a position, conforming to the orientation expressed by these precautionary rulings.
Now the future is very uncertain. The Ministry of Health itself, in fact, turned to the Superior Health Council in order to obtain an opinion. At the moment, we are therefore awaiting this health response, which could have a significant impact on the facilities.
In fact, up to now, institutional consultations on this topic have only taken place between the Ministry and professional associations, without ever involving the health sector associations. ARIS (but also AIOP), in recent months has consulted the Ministry, in order to obtain answers, without however receiving any feedback.
The problem is that, if at the outcome of this process the Superior Health Council agrees to the Lombardy TARs, the health structures will be overwhelmed with appeals by suspended workers at the end of the quarterly period indicated by the competent Dicastery. And this only for having complied with a legal obligation, the purpose of which is, moreover, to protect the health and safety of the patients and the workers involved. I must therefore hope that, in this hypothesis (for the moment, only possible), the State will make adequate refreshments available.
Giovanni Costantino
Lawyer, expert in the health sector
July 19, 2022
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