Physical integrity of staff VS individual freedom of the employee
The Court of Bergamo intervenes on the point with judgment of 8 February 2022, n. 549 ruling that the employer’s choice to prevent access to the premises to workers who refuse to undergo the anti-hygienic buffer in the context of an anti Covid-screening campaignThe Court of First Instance held that Article 19, organized by the employer, is legitimate in so far as it is functional to the need to guarantee the psycho-physical safety of all workers.
In April 2021 a company organized an anti Covid-prevention campaign19, inviting all employees of an establishment to submit to the unsanitary buffer and pointing out that failure to join the campaign would have led to the inadmissibility of the work for 14 days with placement in unpaid leave.
An employee, as soon as he received the announced measure for non-adherence to the aforementioned campaign, filed an appeal under art 414 c.p.c. with a precautionary application.
The Court of Bergamo, preliminary, has restated the obligation datoriale to safeguard the physical integrity of the dependent according to art. 2087 c.c., also on the basis of the specific obligations provided for by Legislative Decree. 81/2008 both for the employer and for the employees.
In particular, general measures to protect the health and safety of workers at the workplace include an obligation on the employer to eliminate or, where this is not possible, minimise risks in relation to knowledge acquired on the basis of technical progress (Art. 15, D.lgs. 81/2008).
The worker is also obliged to contribute to the fulfilment of the obligations laid down in this matter (Art. 20, D.lgs. 81/2008).
With reference to the epidemiological emergency, the Tribunal has specified that the current legislation and the regulations in matter (Protocol of 24 April 2020 and the relative update of 6 April 2021) do not require mandatory adherence to epidemiological prevention campaigns for employees. However, the above-mentioned Protocol expressly provides that the employer may "supplement and propose all legal regulatory measures to COVID-19".
Moreover, as indicated, also by the Court of Sondrio (order of 29.04.2021), must be distinguished from the instrument of the buffer antigienic vaccine anti Covid-19 because the buffer "Unlike the vaccine, it is not a health treatment and therefore the right guaranteed by art. 32 of the Constitution, constituting only a diagnostic test without any fitness to affect the physical integrity of the worker".
In the light of those considerations, the Court of Bergamo therefore held that the inadmissibility of the work is a legitimate consequence of the employee’s free choice not to join the preventive employer’s campaign "the duty of solidarity between subsidiaries and mutual protection of health among work colleagues".
