Italy, Regional Administrative Tribunal of Lazio, 21 April 2022, No. 4914

TAR Lazio, confirming the prevailing administrative jurisprudence, stated that:

• The fundamental value of solidarity must be remembered as well as the obligations of mutual assistance and protection (Article 2 of the Constitution), and of the "solidarity pact" between the individual and the community which, according to the Constitutional Court itself, is the basis of any vaccination, mandatory or recommended (Constitutional Court, 23 June 2020, No. 118);
• the obligation of vaccination is specifically useful to reduce the pressure on the health care structures and health workers in order to guarantee indispensable levels of assistance;
• it is a measure suitable for satisfying the purpose of guaranteeing adequate protection of the right to health, conveyed by the obligation to undergo vaccination for some categories of workers, with the expectation that the hoped-for containment of the incremental dynamics of hospitalizations will reveal a strictly instrumental nature and thus guarantee interventions and treatments not only in favor of Covid patients, but also for citizens in general who are otherwise forced to resort to hospital assistance from the National Health System (the right to health is also represented as an interest in having suitable health facilities: see Constitutional Court, 10 April 2020, No. 62);
• suspension from work and pay is a measure that does not cause irreparable consequences for the employee (disciplinary relevance is excluded and the job is maintained), but is only the application of a precautionary and temporary measure directly related to the persistence of a choice, voluntarily made, to avoid implementation of the vaccination obligation;
• suspension from pay, in particular, is a strict consequence of the suspension from work; since the measure does not have a disciplinary character, Art. 36 of the Constitution on the right to fair compensation for work is maintained, as vaccination is an essential requirement for carrying out the work activity.

The Tribunal of Abruzzo, (L’Aquila), sez. I, ordinanza, 28/4/2022, n. 78, mentioned above, instead, despite having confirmed the legitimacy of the vaccination obligation and the suspension from work and pay, deemed it necessary to protect the worker, as a precaution, by recognizing the right to a maintenance allowance, thus balancing the protection of public health with the rights of the worker to the dignity and minimum sustenance of himself and his family.

The TAR Abruzzo stated that the extent of the suspension from the right to carry out work “is reasonable considering that the protection of public health is absolutely prevalent and, in particular, that protection of the most fragile categories and the most vulnerable subjects in need of care and assistance, is often urgent, and precisely for this reason are frequently placed in contact with health or social health personnel; there is a stringent bond of solidarity, the cornerstone of the constitutional system (Art. 2 Cost.) and immanent and consubstantial with the same relationship of care and trust that is established between patient and healthcare staff, which requires avoiding the paradoxical outcome of a contagion transmitted by the same subjects called to the functions of care and assistance (Council of State, Ordinance no. 6790/2021).