The Italian Constitutional Court has held that the vaccine mandate established for people working in health facilities is reasonable, regardless of the employees’ activities and working arrangements.
The case concerns the suspension of a woman working as administrative employee of a local Health and Social Care Service. The worker had been suspended because she had not complied with compulsory vaccination established by Article 4 ter D.L. n. 44 of 2021 for certain workers, including "personnel carrying out their activities in health facilities".
The worker, however, believed that mandatory vaccination was unreasonable in her case, as she did not have interactions with the hospital public due to her administrative activity. Moreover, she was working from home at the time of her suspension.
The Court of Brescia submitted to the Constitutional Court the constitutionality of Article 4 ter on the following three grounds:
- The provision is discriminatory and violates Article 3 of the Italian Constitution, as public employees are required to undergo vaccination but people working with an external contract are not;
- The provision is unreasonable and violates Article 3 of the Italian Constitution, as the vaccination is mandatory regardless of the concrete job and the way to perform it;
- Making work conditional upon mandatory vaccination violates citizens’ right to work under Article 4 of the Italian Constitution.
While the first and third grounds were considered inadmissible, the Court addressed the second one on the merits, rejecting it.
As already stated in the twin judgment n°185/2023, the Constitutional Court confirmed that the legislator could lawfully establish a vaccine mandate for certain professional groups with the aim to contain the spread of COVID-19.
Moreover, it is not unreasonable that it opted for a unitary discipline for a category (namely, the employees of health facilities) without making internal distinctions based on the way in which they carrying out their job (in person or remotely). This simplified approach was thus justified by the worsening of the pandemic and the requirement to regulate by legislation. The Court indicates that initially the legislation adopted a more limited approach and later broadened the mandatory vaccination to all health care professionals regardless of the differences between medical and administrative and those between in person and on-line. The Constitutional Court has stated that the legislative inclusive approach was justified in light of the emergency conditions and the costs and (un)feasibility of control over the specific activities of health care professionals. An automatic and undifferentiated system exonerated the public employer from exercising a burdensome and inappropriate individual control that would have taken resources away from the health emergency.
For these reasons, the Constitutional Court found the vaccine mandate legitimate.
This judgment could have a significant impact on future case law. Indeed, some first instance courts had recently held that administrative employees of health facilities should have been excluded from mandatory vaccination due to their lack of contact with patients.
For instance, this is what the Court of Turin claimed in the judgment n°1552/2023 of 12 September 2023. The case at issue was very similar to the present one: the plaintiff – an administrative employee of the ASL of Turin – had been suspended from work after refusing to get vaccinated.
After judgment n°186/2023, however, it seems clear that interpretations such as the one of the Court of Turin would clash with the Constitutional Court position.
