While the world tackles the thorny issues of vaccine passports and \u201cno jab, no job\u201d policies, on April 1st 2021 Italy became (to the best of my knowledge) the first country to enact a law specifically prescribing COVID-19 vaccination for healthcare workers, with non-compliance entailing removal from healthcare activities or, when this is not possible, suspension from work and wage. This may appear as an infringement of the constitutionally protected right to health as a matter of self-determination. But in fact, given the case-law of the Italian Constitutional Court, the newly enacted obligation seems to meet the requirements of the Italian Constitution (article 32)

Massa, Michele

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The Italian “No Jab, No Job” LawMichele Massa 2021-04-07T21:29:06While the world tackles the thorny issues of vaccine passports and “no jab, nojob” policies, on April 1st 2021 Italy became (to the best of my knowledge) the firstcountry to enact a law specifically prescribing COVID-19 vaccination for healthcareworkers, with non-compliance entailing removal from healthcare activities or,when this is not possible, suspension from work and wage. This may appear asan infringement of the constitutionally protected right to health as a matter of self-determination. But in fact, given the case-law of the Italian Constitutional Court, thenewly enacted obligation seems to meet the requirements of the Italian Constitution(article 32).BackgroundItaly has been hit hard by COVID-19, including its legal system (see here; see alsothe Italian contributions to this Intersentia online bundle and to this forthcoming legalatlas). The vaccination campaign has started officially at the end of 2020 and iscurrently ongoing. The first official step was a strategic plan adopted by the HealthMinister in December 2020, which was also communicated to the Regions anddiscussed, and approved, by the Parliament. Subsequently, the 2021 Budget Law(no. 178 of 2020) gave a statutory frame to the program: under article 1, para. 457ff., the program had to be approved with a ministerial decree and enacted by theRegions, under the supervision of the national Commissioner appointed for theemergency. Indeed, the December plan was re-issued, with updates, as a ministerialdecree in January 2021, with further recommendations issued in March 2021. Untilnow, no explicit provision was made concerning mandatory vaccinations.In the strategic plan, health care workers were listed among the first target groupsfor early vaccination (together with hospitalized seniors, and persons over theage of 80). The reasons given for the priority were the high risk of exposition andtransmission of contagion, the need to preserve the resiliency of the healthcaresystem, and the principle of reciprocity, as assessed by the WHO Strategic AdvisoryGroup of Experts on Immunization (see here).However – even before the thromboembolic episodes in people vaccinated withAstraZeneca’s vaccine (now Vaxzevria) – a certain degree of vaccine hesitancy hadbeen noticed also among health care workers, mostly due lack of trust in vaccinesafety and receiving little or conflicting information about vaccines.Consequently, as vaccinations gradually became available, a debate emerged bothin the general public opinion and among lawyers whether existing legislation onworkplace safety allowed, or required, non-vaccinated health care workers to bedispensed from service (see my forthcoming article in Quaderni costituzionali no.1/2021). Many public and private employers struggled to tackle the problem, e.g.,- 1 -by putting reluctant workers on leave or on temporary unemployment benefits. OnMarch 19th 2021, a Tribunal in Veneto issued an interim decision – the first of itskind, as far as I know – upholding compulsory leave for non-vaccinated personnel.Of course, this could only be a temporary and non-general solution.The obligation and its enforcementThe National Government was quick to take the lead and give guidance. Decree-lawno. 44 of 2021 (issued and published on April 1st) introduces several dispositionsconcerning vaccinations.Article 3 shields health care workers from criminal responsibilities (for manslaughterand personal injury) which could otherwise be theoretically connected tovaccinations, on condition that they are administered in full compliance withmarketing authorizations and official recommendations by the Health Ministry.Most notably, article 4 prescribes vaccination (free of charge) for a broad range ofhealth care workers, including physicians, nurses, chemists, and auxiliary workers;the vaccination becomes a legal condition for both professional practice, and workin healthcare services (para. 1). Exemptions are allowed only in cases of danger forpersonal health due to special clinical conditions, certified for individual patients bytheir attending physicians (para. 2).Para. 3-7 set up a dedicated enforcement procedure: the lists of health care workersare transmitted to healthcare services, which subsequently invite professionals notalready recorded as immunized to (1) either prove that the vaccination, althoughnot recorded, has been administered, e.g. in another Region, (2) or request it, (3)or document individual impediments due to special clinical conditions. Health careworkers must comply within 5 days, or the local healthcare unit will communicate thenon-compliance to the relevant employers and professional associations.After the communication, non-compliant health care workers must be removed fromevery activity entailing interpersonal contacts, or any other risk of contagion (para.6). They may be employed in other positions, also of a lower level (in this case,with a correspondingly lower wage), if this is possible; otherwise, their employmentis suspended without wage (para. 8). This arrangement may last as long as thevaccination is not administered, or until the national vaccination program is fullyexecuted, but no longer than 31st December 2021 (para. 9). Further statutoryamendments to the decree-law might change this date, naturally.Separate provisions are made for frail workers who may not be immunized due toindividual medical conditions: They may be transferred to different activities butare not subject to wage reductions (para. 10). Moreover, a specific protocol will beissued on preventive measures in professional practice (para. 11).- 2 -Decree-law no. 44 of 2021 has been submitted to the Parliament (AS 2167), whichmust decide on its transposition into law within 60 days (under article 77 of the ItalianConstitution), and may also amend it.The explanatory report, which accompanies the transposition bill, explains theconstitutional foundations of this decision (see below), as well as its urgent politicalreasons: health care workers’ vaccination, together with the preventive measuresto be applied in medical environments, protects not just the health care workersthemselves but also contributes to protecting patients, to the defense of theefficiency of healthcare services and to general healthcare policies.Constitutional basisIt is probably not a mere coincidence that the constitutional grounds for mandatoryvaccination are extensively expounded in the report, with detailed references to therelevant case-law by the ItCC. Indeed, the current Justice Minister – responsible forthe preparation of these provisions – is Marta Cartabia, former President of the ItCC,as well as rapporteur and drafter of an important ItCC decision, widely quoted in thereport: judgment no. 5 of 2018 (also available in English translation), concerning10 mandatory vaccinations imposed in 2017 through another decree-law, when itbecame clear that reluctance was growing, and coverage rates were falling, whilea measles epidemic was taking place (see also a brief summary in the I·CONnect-Clough Center 2018 Global Review of Constitutional Law, p. 169).This decision (also on the basis of a wide-ranging comparative law enquiry bythe ItCC Research office) restates many principles on mandatory vaccinationestablished by the ItCC case-law throughout the years.Medical treatments, including vaccinations, are in principle subject to the principleof free and informed consent. Only exceptionally may they be imposed, through aspecific national (not regional) law provision, provided that (cumulatively):• the treatment is both beneficial to its recipient, and useful to preserve the healthof other persons;• the treatment has no negative impact on the health of the recipient, besides theusual and tolerable consequences of its administration;• for the exceptional and unforeseeable cases in which the treatment might causefurther injury, an equitable compensation is provided, apart from any damageswhich the injured party may claim under general tort law.When it comes to vaccinations against infectious diseases, several constitutionalprinciples – including self-determination – need to balanced, which leaves room forlegislative discretion in choosing which tool to employ in any given situation: rangingfrom mere persuasion and recommendations to legal obligations (which in their turnmay be assisted by a wide range of different sanctions).- 3 -This discretion must be exercised considering the various health and epidemiologicalconditions, as ascertained by the responsible authorities and of the constantlyevolving discoveries of medical research.Judgment no. 5 of 2018 also exemplifies how these principles may support a data-driven judicial review of epidemiological legislation: in that case, also the opinionsexpressed by several scientific and professional bodies and associations were takeninto account, including the WHO as well as national and regional health authorities.Moreover, in 2019, judgment no. 137 upheld a regional law, allowing health careworkers not vaccinated against influenza to be excluded from certain hospital wards.The ItCC held that such a measure is just a way for the regional administration tofulfil its general obligations as an employer, in order to protect the safety of workenvironments.Further constitutional guarantees would apply, if a treatment was to be forciblyadministered. But this is not the case under decree-law no. 44 of 2011.A commentDecree-law no. 44 of 2021 is undergoing parliamentary scrutiny and may change.The Parliament could also launch further investigations, as it did in 2017 whiletransposing into law the decree subsequently upheld by judgment no. 5 of 2018.Nonetheless, a preliminary positive assessment of the new measure seems alreadypossible, for three reasons.First, the new obligation must be placed against its specific factual and legalbackground. On the one hand, although no comprehensive statistical analysisexists on vaccine reluctance among health care workers (and its impact on theepidemiological situation), several instances have been reported in the press, andlegal controversies started to appear, at a critical juncture of the campaign andon the very first line of the fight against the pandemic. Waiting for more data tobe collected and more controversies to accrue would have been a risky option.Naturally, «[n]othing prevents this choice from being reevaluated and reconsideredshould conditions change», as «the medical and scientific knowledge that mustshore up regulatory choices in the healthcare field» has an intrinsic «evolvingdynamic» (see again judgment no. 5 of 2018).On the other hand, although decree-law no. 44 of 2021 enacted new and specificprovisions, as it was necessary under article 32 of the Italian Constitution, apparentlyit does not stray very far from general legislation on workplace safety. Accordingto articles 42 and 279 of the relevant consolidated text (legislative decree no. 81 of2008), when specific biological risks exist, the employer may either provide workerswith vaccines, or remove them temporarily from exposed activities (and assign themto other jobs, if available). When viewed in this light, particularly with regard to theconsequences of vaccination refusal, the emergency provisions in decree-law no. 44- 4 -of 2021 may be seen, to some extent, as just a special application and adaptation ofgeneral principles already present in the legal system.Secondly, the new obligation is limited to specific professional categories and tothe timeframe of the ongoing campaign. This double limitation was suggested inNovember 2020 by the National Bioethics Committee in its opinion on COVID-19vaccinations.Thirdly, and obviously, this piece of legislation must be considered taking intoaccount all the other provisions which aim at ensuring the safety of medicinesin general and vaccines in particular, pharmacovigilance, and compensation forexceptional adverse events caused by mandatory vaccinations (law no. 210 of1992).Therefore, in sum, there is little doubt that the planned vaccine obligation, in itscurrent legislative form, would withstand constitutional scrutiny. Not a small feat inthese times of political and constitutional uncertainty.- 5 -

The Italian “No Jab, No Job” Law

While the world tackles the thorny issues of vaccine passports and “no jab, no job” policies, on April 1st 2021 Italy became (to the best of my knowledge) the first country to enact a law specifically prescribing COVID-19 vaccination for healthcare workers, with non-compliance entailing removal from healthcare activities or, when this is not possible, suspension from work and wage. This may appear as an infringement of the constitutionally protected right to health as a matter of self-determination. But in fact, given the case-law of the Italian Constitutional Court, the newly enacted obligation seems to meet the requirements of the Italian Constitution (article 32)

Michele Massa (ORCID:0000-0001-6642-7654)

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The Italian “No Jab, No Job” Law

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