Those who refuse vaccine risk staying home without a salary

Those who refuse to get vaccinated against Covid risk suspension from work and therefore remain at home without pay. This seems to be the direction by now, judging by the decision of the court of Rome that has given reason to a company that has frozen the employment relationship of a woman who is reluctant to get vaccinated, we read on laleggepertutti.it. The orientation of the Capitoline judges is that already expressed in the past by colleagues from other cities: if an employer leaves an employee who does not want to get vaccinated at home without pay, it is not a sort of retaliation or, as the Roman worker claimed. , of a disciplinary measure adopted for the sole fact of having refused the serum against coronavirus. It is – the court insists – a measure that is necessary when there are no other tasks to which a worker who does not want to get vaccinated and who, not resulting from the company’s medical examination “suitable to be in contact with customers”, must necessarily stay at home. Logically, since he does not work, he is not entitled to a salary. A “duty” behavior, therefore, that of the employer who acts in this way, “given the partial unfitness for the duties”, we read in the sentence. On the contrary: the owner of the company “is obliged to temporarily suspend the employee from the duties to which he is assigned, pursuant to art. 2087 of the Civil Code”. Article that says: the entrepreneur is required “to adopt all those prevention and protection measures that are necessary to protect the physical integrity of the workers”. For the court, this concept includes the potential risk of contagion represented by those who refuse the vaccine, and not only: the Consolidated Law on Safety places very specific responsibilities on the worker in this matter. It reads: “Each worker must take care of his own health and safety and that of other people present in the workplace affected by the effects of his actions or omissions, in accordance with his training, instructions and means provided by the employer Work”. In summary: if the worker does not want to get vaccinated but pretends to work, he violates the principle established by the Consolidated Law on Safety. Consequently, the employer is obliged to suspend him from the activity. And, as the Capitoline sentence recalls, recalling the relevant jurisprudence, “if the work performances are prohibited by the prescriptions of the competent doctor with consequent legitimacy of the employer’s refusal to receive, the same employer is not required to pay the salary” Recently, the court of Modena also expressed itself in this direction, citing the European directive which, in June 2020, included Covid among the biological agents against which it is necessary to protect the workplace. Hence – the Emilian judge argues – the duty incumbent on the employer to protect personnel also from the coronavirus risk, against which the mask is not enough as a protection measure. In other words: whoever is in contact with the public or works in small spaces next to colleagues can be suspended from work and from pay in case of lack of vaccination, since – concludes the Modena court – the right to freedom of self-determination must be balanced with other constitutional rights such as that to the health of others (customers, employees, collaborators) and with the principle of free economic initiative.

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