Now that the green pass has become a mandatory requirement in Italian workplaces, it makes sense to give some clarifications of the main regulations approved by the Italian Government.
First of all, it’s important to point out that vaccinations cannot be made mandatory even though, in the past, in case of refusal to be vaccinated, some legal consequences have been considered legitimate. For example, with the decree law of 7 June 2017, n. 73, converted with amendments into law 31 July 2017, n. 119, ten compulsory vaccinations have been provided for minors under 16 and four have been recommended. Concerning the sanctions in case of non-compliance with these obligations, children under 6 years could be excluded from kindergartens and pre-schools, while children under 16 should pay an administrative fine of pecuniary nature up to max 500 euros (in this case the minor can still access school and take exams). In this case the Constitutional Court, in sentence no. 5 of 2018, considered legitimate and reasonable this legal discipline based on the status of epidemiological conditions and of scientific knowledge.
Even in the difficult situation, we are experiencing nowadays, it was deemed necessary the adoptions of measures to fight Covid-19. The D.L. 21 September 2021, n. 127 including “Urgent measures to ensure safety in public and private working places “, in fact, introduces the discipline of the mandatory green pass to all public and private sectors workers, starting from 15 October until 31 December 2021, the date of the presumed cessation of the pandemic state of emergency. Therefore, the number of people, initially including only doctors and nurses, has gradually expanded including, now, all public and private employees.
Beyond any personal opinion, the issue of a mandatory green pass has been addressed and carefully examined by the European Court of Human Rights. In particular, the Court established that the protection of public health and of individuals prevails over all other opposing interests, and this is particularly important during a pandemic (European Court of Human Rights – appeal no. 41950/2021). The employers, therefore, with the D.L. 127/2021 are asked to verify workers’ compliance with the requirements and must define the operating procedures for the organization of controls, including random controls; in this situation, they should give priority, where possible, to procedures aimed to control workers while they access the workplace.
Personnel entering the workplace without any certification are considered unjustified absent from that day, they have no right to receive remuneration and, from the fifth day of absence, the employment agreement is considered suspended. This suspension should be immediately communicated to the interested worker and is valid until the presentation of the correct certification, no later than 31 December (term of termination of the state of emergency); in this case, there won’t be any disciplinary consequence or risk to lose the working position.
Furthermore, the workers entering the workplaces without a green pass are punished with an administrative sanction from € 600 to € 1,500, in addition to the disciplinary consequences. On the other hand, the employer who does not verify the compliance with these rules will be applied a penalty from 400 to 1,000 euros. In conclusion, after a quick analysis of the main regulations concerning Green Pass, it’s important in my opinion to remember the famous Galileo’s motto, completely disregarded during this pandemic: “scientific truths are not decided by the majority”.
Article edit by Giovanni Bartoletti
Lawyer of the Court of Viterbo