Vaccines and general obligations of protection ex art.2087 cc
Article .2087 cc states that "the employer is required to adopt, in the exercise of the firm, measures that, according to the particularity of the work, experience and technology, are necessary to protect the physical and mental harm's Employees. " As vaccination is an act typical physician in the field of occupational safety of a vaccine against a specific biological risk (but also aggravated generic) work can only be interpreted in all respects, in the light of Legislative Decree 81/2008 Article .2087 but also of the CC, as a measure of protection necessary to protect the health of workers who the employer is required to take.
vaccinations to be taken in the field of occupational medicine, therefore, are:
mandatory vaccinations for tetanus what are the categories of workers mentioned in art. 1 of Law 5 March 1963, No 292, Law No 20 March 1968 419, DM 16 September 1975, Presidential Decree 1301 of 7.9.65, 22.3.75 DM or the anti-tuberculosis (L.1088/70) in health.
vaccinations to assess, together with the physician in charge, according to the type of biological risk (art.279 paragraph 2nd Leg 81/2008): among the most common include the anti HBV antiHAV, typhoid, but considering how the obligations of the employer is not crowded even in the case of business trips abroad, the list becomes very large.
Obviously, vaccinations are placed in position "subsidiary" with respect to the measures at the source anticontagio (cabins evacuated, proof containers needles) and individual (gloves, splash-proof goggles, etc.). In the sense who face a risk of infection, you should always first priority to measures that prevent contact with the organism, and until one is technically impossible to avoid such contact with absolute certainty, to impose specific vaccines.
The obligations imposed by the employer and the problem of consent
As is known in theory, any medical procedure refers to its conditions for legitimacy in a free and informed consent by the patient's consent, which has its sources in the legal artt.13 and 32 of the Constitution and Article 5 of the Civil Code. In the field of occupational safety, however, it is also known as "security measures must be implemented by the employer against the wishes of the worker "(Cass. pen. sect. IV, 02/05/1991, n.1170).
A worker exposed to biological risk jobs without first being vaccinated, is for the employer a situation of permanent danger and "knows" that automatically makes a corresponding rise and binding obligation on the employer to take action and readily reduce the risk to the minimum technically feasible. Therefore, in this case, as well as for other security measures in the workplace, the employer is obliged to invoke disciplinary action including a worker who refused the vaccinations. Otherwise, in fact, if you concedesse the worker the arbitrary right to refuse vaccination, the art of .2087 cc would be transformed into an unlawful source of liability for the employer if the employer is required by law to take all measures "necessary" to protection for employees, it is obvious that he should be able to do so without interference or restrictions.
Any refusal to submit to the vaccine by a worker would undermine the entire legislative structure to protect the safety of employment paying nothing in the position of "guarantee" borne by the employer, a position that is its legitimacy from the entrepreneur the ability to exercise the powers of economic decision-making and sanction without any interference or limitation (according to the legal principles of 'effectiveness' and' enforceability of Conduct). In fact, while the nature of medical treatment of the vaccine, due to forecasts of Article 32 of the Constitution, creates significant legal issues in cases of potential side effects (see below), the other makes the refusal of the employee and any by means of a waiver of these are not of legal value, because:
1. Article 41 of the Constitution guarantees freedom of enterprise entrepreneur (first paragraph) provided this does not take place against the utility and social security (second paragraph).
Health, representing one of the "fundamental rights" protected in the Constitution (art.3218), represents a typical example of 'law unavailable' as all inalienable rights is therefore not likely to be exchanged or transferred, even in part, through contracts or agreements even implicit.
2. In order to balance the rights protected by Articles 41 and 32 of the Constitution, the legislature has made the art .2087 cc requiring the employer to take all measures as may be necessary to protect mental and physical health of workers and that makes the employer liable to criminal and civil liability in respect of the worker.
3. By the time the employer to the employee an exemption from concedesse vaccinated, it would necessarily underlies a kind of pact in which the employee in exchange for the exemption to submit to vaccination, "agreeing" to request a waiver of any damages to the employer, no longer able to take all safety measures richiestigli by law.
4. But this pact is a clear example of 'transfer' part of the worker of their right to health guaranteed by Article 32 of the Constitution and therefore, because of the "nature unavailable" this fundamental right, would not be admissible.
5. Moreover, such an agreement would be for the employer without any redeeming value in terms of criminal responsibility, as the rules on work safety, which include the obligation to submit to vaccinations, belonging to public law, can not be departed from by private agreements, express or implied that.
6. Consider, finally, as the vaccination requirement constitutes a crime prosecuted ex officio and not a lawsuit, so it would not affect any other agreement relating in any way the legal process of any offense.
7. On a more practical level, moreover, any agreement between employer and employee could be easier possibility of systematic breaches of the law, because it may allow the employer to obtain relevant documents from its employees not to apply this and other standards safety.
8. All of the above, finally becomes particularly relevant in light of the authoritative teaching of the supreme court, "... when you take into account the state of subjection of the employee against the employer and the consequent power of suggestion as well, and when it comes to protecting rights unavailable to their nature and guaranteed by the Constitution, such as the right to health "(extract from Cass. Criminal sect. VI, Case No 1473 of 02.04.1999). That lack of consent of the employee "is clarified in the recent Supreme Court Criminal, Sec. III, No. 1728 of January 21, 2005, relating to consent by the employee in the execution of physician visits by the company during the period of illness (.5 Views prohibited by the Workers 'Statute), where we read as' a) are available only to individual rights without public importance, b) those rights which are inalienable, in addition to individual titles, including interests recognized by superindividual e) is flawed, and therefore of no effect justifications, the consent given by a taxable person who is in a position of inferiority against the staff. "
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