Sorveglianza sanitaria e licenziamento del disabile per superamento del comporto: le questioni irrisolte

Abstract

Based on the international and European Union definition of disability, case law has rewritten the regulations governing dismissal for exceeding the sick leave period (comporto). The now-dominant trend penalizes with nullity, as discriminatory, the dismissal of a disabled worker resulting from the application of the ordinary sick leave limits set by national collective bargaining agreements (CCNLs). It mandates the need—which also impacts the drafting of future CCNLs—to apply an extended sick leave period that takes into account and excludes absences due to illnesses related to the disability. Since this presupposes awareness of the disability, even if not officially certified, an obligation is placed on the employer to look for signs of a possible disability and subsequently ask the workers for all information regarding their health status. The article reconstructs this jurisprudential trend and highlights its critical issues with respect to current legislation on the knowledge/knowability of the worker's health status, to the Workers’ Statute and the GDPR, and to the regulatory constraints that define the perimeter of health surveillance and the duties of the occupational physician as well. The conclusions look to the near future and confirm that labor law institutions are also affected by the profound ongoing overhaul of the role of the occupational physician.