Here's how the agencies broke the news:
''A new cluster of Coronavirus has been registered at the San Martino hospital in Genoa. The hospital management confirmed the identification of a cluster deriving from the English variant on the 1st floor of the Maragliano Pavilion. According to reports, a nurse who had not agreed to undergo the anti-Covid vaccination also tested positive. The safety protocol was immediately implemented at the Polyclinic to identify any infections among hospitalized patients as soon as possible. The complex structures of Hygiene directed by Professor Icardi and of Infectious Diseases directed by Professor Bassetti have activated all the procedures envisaged by the protocol in concert with the health management. At the moment there are ten people who have tested positive for Covid-19 in the hospital''.
This fact brings to mind a debate which took place a few weeks ago regarding thecompulsory vaccination (especially for some particularly exposed categories) and on the consequences that refusal of vaccination could have on the employment relationship, up to termination for justified reasons. Obviously in Genoa the causal link must be ascertained. And yet, it would seem that a real school case is foreshadowing, albeit in the uncertainty of an undefined legislative and jurisprudential framework.
The hospital, like all employers, is subject to the provisions of article 2087 of the civil code which states:
''The entrepreneur is required to adopt the measures that, according to the particular nature of the work, experience and technique, are necessary to protect the physical integrity and moral personality of the workers'' .
Civil Code, article 2087
This is a ''closing rule'' of accident prevention protection, as for the entrepreneur, in order to be freed from criminal and civil liability, it is not enough to simply comply with the laws in force on the subject of occupational safety. The horizon of the cited article is that of particularity, experience and technique and the indications that derive from them even in the silence of the law.
It is in this norm the key to the problem since the law traced the contraction of the virus in the workplace or in transit to the case of an accident (with the specification: from covid-19), not only for personnel - such as healthcare personnel - who work in contact with the virus , but for anyone who can demonstrate the etiology of the infection.
The violent cause of the injury (from Covid-19) could have put the companies in a position of strict liability, if it had not been clarified, in a subsequent provision, that: "For the purposes of protection against the risk of contagion from Covid-19, public (therefore also a hospital, ed.) and private employers fulfill the obligation pursuant to article 2087 of the civil code through the application of the provisions contained in the shared protocol for the regulation of measures to combat and contain the spread of Covid-19 in the workplace, signed on 24 April 2020 between the Government and the social partners, and subsequent amendments and additions, and in the other protocols and guidelines referred to in article 1, paragraph 14, of the decree-law of 16 May 2020, n. 33, as well as through the adoption and maintenance of the measures envisaged therein. If the aforementioned provisions do not apply, the measures contained in the sectoral protocols or agreements entered into by the comparatively most representative trade union and employer organizations at national level are relevant".
In essence, the legislator has deemed it necessary to provide some sort of authentic interpretation of the application of article 2087, precisely because of the concerns expressed by the business world and shared, at the time, also by the Colao Plan: "The possible recognition as an accident at work of the contagion from Covid-19, even in non-healthcare sectors , poses – it was written – a problem of possible criminal liability of the employer which, in many cases, can be transformed into a brake on the resumption of activities. On the other hand, for the worker who is exposed to the risk of contagion due to the journey he has to take to get to work and for staying in the workplace for a long time, perhaps in contact with the public, the treatment of the contagion as an accident guarantees a level of protection, for themselves and their families, far greater than the treatment of a simple illness. It is therefore a matter of identifying – as it later happened, ed – a compromise solution that safeguards the two needs”.
At this point, it can be summarized: the employer, pursuant to the aforementioned article 2087, is required to adopt all the measures which, regardless of what is implemented and indicated by the law, can protect the worker's safety; the contagion from Covid-19, if contracted at work, is considered accident, from whose responsibility the employer escapes if he is recognized to have correctly applied the provisions of the Protocols.
As part of the protective measures, the availability of vaccines, regularly tested by the competent authorities: a measure which is the result of ''experience and ''technique''. An obligation then arises for the employer (public or private) to secure its employees. When in the context of the employment relationship one of the parties - in our case the service provider - evades a contractual obligation putting his health and that of his colleagues at risk, the employer - who is in any case responsible for the safety of the corporate community – it is not allowed to get away with saying: ''I wanted to give him the vaccination, but he refused''.
The employee's action does not exonerate the employer in the event that the infection/accident results in serious damage or the death of the employee and other infected colleagues; but the refusal prevents him from fulfilling an obligation accompanied by penal sanctions. Then there is the problem with other subjects - patients, for example, or their relatives - who, if infected, can accuse the administration of not having taken steps to remove a source of risk of which it was aware (in the case examination the nurse had notoriously avoided the administration of the virus).
In the case of Genoa, the hospital administration should have at least suspended the employee. It is therefore appropriate that the social partners take action to update their worthy protocols to the new availability of vaccinations, also because companies are preparing to become principals for administrations.
In case of denial of vaccinationThere doesn't seem to be a different solution termination of the employment relationship by the employer. Because, if you think about it, it doesn't even seem possible to transfer to another job (in total isolation?) precisely due to the very nature of the contagion.
It is also necessary to take into account the statistics which confirm the existence of a serious problem: out of 131 complaints in 2020, analysis by profession of the injured person highlights the category of health technicians as the one most affected by infections with 38,7% of the complaints (in three out of four cases they are women), 82,2% of which relate to nurses. Followed by social-health workers with 19,2% (80,9% are women), doctors with 9,2% (48,0% are women), social-welfare workers with 7,4, 85,1% (4,7% women) and unqualified personnel in health services (auxiliary, porter, stretcher bearer) with 3% (4 out of XNUMX are women).
The complaints of fatal accident at work presented to Inail in 2020 there were 1.270. Despite the provisional nature of the numbers, this figure shows an increase of 181 cases compared to the 1.089 recorded in 2019 (+16,6%). The increase is mainly influenced by the deaths that occurred and registered as of 31 December 2020 due to the Covid-19 infection in the workplace, which represent about a third of the deaths reported to Inail since the beginning of the year.
