Ubi lex voluit dixit, ubi noluit tacuit. La posizione del lavoratore che rifiuta il vaccino e i profili di responsabilità del datore di lavoro

Abstract

Some vaccines against COVID-19 have been subject to marketing authorization (so-called AIC) conditional on the commitment, by the requesting pharmaceutical companies, to monitor the medicine and complete the data relating to its efficacy and safety within a certain date.
These vaccines must be considered safe drugs, since the Community procedures for the simplified authorization of medicines are in any case intended to raise the levels of health protection.
In the workplace, however, today, no one can be directly or indirectly obliged to undergo immunization treatment, if not by law provision adopted within the limits of respect for the human person.
The level of security that the entrepreneur is required to ensure in the company premises is therefore that resulting from the application of the measures crystallized in the protocols of 24 April 2020 (now 6 April 2021).
This level corresponds to the maximum technologically possible security in a constitutionally oriented meaning.
In the abstract, in fact, the immunization of each staff unit would be materially possible and would guarantee a higher health protection in the workplace.
However, in practice, the same immunization, according to a constitutionally oriented reading of the legislation involved (Article 2087 of the Italian Civil Code and Article 29 bis of Legislative Decree No. 23/2020) is legally impossible.