n recent weeks, the debate on whether the coronavirus vaccine should be compulsory has become very intense.

In Italy, there have been a number of very recent first instance court decisions of the courts that have addressed some key issues.  

• On 19 March 2021, the Labour Court of Belluno rejected an appeal by some paramedical employees of a nursing home who had refused to undergo the vaccine against CoVID and that the employer had, as a result, placed on forced paid leave.

The judge noted that under Article 2087 Civil Code, the employer must ensure the health and safety of its employees, as well as both guests and visitors.

When the competent doctor examined the workers concerned, in accordance with Article 41 of Legislative Decree no. 81/2008, he had declared them unfit for the job as they had not had the vaccine and, consequently, had notified the employer of such unsuitability.

The Court held that the employer’s decision, unable to assign the nurses to another task, is totally lawful.

• Labour Court of Modena, issued another relevant decision on 19 May 2021 on the legality of the employer's decision to suspend two physiotherapists from work and pay until they had completed the Covid 19 vaccination. Given that Article 4 of Decree-Law No. 44/2021 prescribes vaccination as an essential requirement for exercising the profession and carrying out the health professions, the Tribunal rejected the employees’ appeal. The Court held that the employee’s decision constitutes conduct which significantly affects the contractual relationship. The employer has the right to suspend the employee because his performance is even a potential source of damage and of liability for the employer itself.
• On 28 July 2021, the Labour Court of Rome -referred expressly to the arguments of the Court of Modena mentioned above-, declared the legitimacy of the suspension of the employee from work and pay ordered by the employer following a letter from a the competent doctor, of her temporary unfitness due to refusal to undergo the vaccine Covid. In the present case, a worker had been declared fit for work by a competent doctor with certain restrictions, including the impossibility of being in contact with other people because of her refusal to undergo vaccination against Covid-19. The employer was therefore obliged, under Article 2087 of the Civil Code, to protect the health and safety of the employee and, consequently, to temporarily suspend her from performing her job.
• Following, also the Labour Courts of Bergamo and Ivrea confirmed the legitimacy of suspension from duty for health and social workers who refuse to get vaccinated. I The Ivrea Court pointed out that there is no violation of constitutional freedoms of the employee, since the interest of the community is overriding that of the individual. But above all, the individual worker is still guaranteed the opportunity to refuse the vaccine, with related consequences on the work performance and, in case of refusal, the employer is required to assign him, according to Italian law, to a non-risky workplace where available. It is therefore a question of a fair balance between the different rights and interests involved.

These are very important milestones for in the Consolidated Law on Safety at Work, which confirm that the health of employees cannot be put at risk by the continued employment of a worker who has not wanted to be vaccinated.

From a different point of view, a decision of the Labour Court of Trento, on 8 July 2021, stated that it is lawful to dismiss an employee, who repeatedly refuses to wear a face mask in the workplace on the ground that the use of such devices is not only useless in combating Covid-19 infection, but is also harmful to his/her health. Such conduct, in fact, constitutes just cause for termination to the extent that the employee has put her own personal convictions before the general interest, which are moreover unsupported by the scientific community which, on the contrary, prescribes the use of a mask in the workplace.  In the present case, a nursery school teacher had justified her conduct by describing it not as disobedience but as 'conscientious objection' and by pointing out alleged respiratory difficulties not supported by appropriate medical certification.

This decision seems also to be in line with a recent German decision: a German employee who refused to wear a mask and presented what he called a ‘snot rag exemption’ was legally dismissed, according to a recent ruling from the Cologne Labour Court in a judgment of 17 June 2021.