Why lawyers will determine who must get vaccinated | Emanuela Truffo

Emanuela Truffo

To get vaccinated or not get vaccinated, this is the question. Since the Enlightenment, western philosophy has been spinning around two principles — individual freedom and societal safeguards — sometimes diverging, sometimes converging, in a perpetual search for a balance between the two to make public and private life sustainable.

The main difference between modern democracy and dictatorship is the freedom of choice, defined as the liberty of self-determination. Roughly said, in a totalitarian regime, any individual is merely a part of the whole and should be sacrificed for the good of society. On the contrary, constitutions of so-called free countries grant to each individual — citizen or not — the right to self-determine his or her personality and life.

And health-care choices are included in such free self-determination. This is why we are free to eat junk food or smoke cigarettes — or vape — although we are fully aware of the devastating impact that those bad habits have on our health and on our country’s national health service.

Notwithstanding the fact that the detriment caused to any member of the society could be considered a tolerable side effect in a democracy, the freedom granted to anybody might be limited because of the needs of the community as a whole. The latter is a sort of extreme measure for any kind of democratic system, but temporary and specific limitations to people’s freedom are to be accepted when the circumstances set by the law occur.

Vaccination Day — when rollout was launched — took place across the EU on Dec. 27, 2020. This included Italy, where the constitution expressly grants the right — but not the duty — to access to medical care for any person in the country, citizen or not. As a matter of fact, article 32 of the Italian Constitution sets the basics of the Italian National Health Service (NHS):

(a) The access to medical care must be granted to indigent people free of charge;

(b) Nobody can be forced to medical treatment unless under specific conditions provided by the law;

(c) Health care is both a right of any individual and an interest of the community.

(d) Any bill or regulation that directly or indirectly disrespects the human body and/or mental health is to be considered a breach of the constitution.

For the time being, COVID-19 vaccination is not compulsory, not even for the NHS workers or other essential workers. However, quite a debate has begun about whether employers can terminate an employment contract in case an employee refuses to be vaccinated.

Thanks to the pandemic, a concept relegated to the domain of environmental activism has now become a universal need, since all governments are seeking the sustainable balance between health care and economy. And the workplace will be the first place to find that balance, bearing in mind that schools are not only where a kid becomes an adult, but also a place where people work.

Now, a few things are certain:

(1) No employee is allowed to conduct himself/herself in a way that endangers co-workers. This is a general principle of all democracies: the freedom of someone ends where the freedom of the others starts. And the other way around;

(2) Nobody should be forced to be vaccinated or accept any kind of medical care as long as his or her choice has no impact on a third party’s life; and the decision is made with full mental competence;

(3) Despite the fact that the Italian Parliament seems determined to not introduce any kind of compulsory vaccination, employers are entitled by the general principles of our legal system to make any decision and adopt all measures necessary to keep the work environment safe and healthy. Furthermore, business continuity is considered part of the environment to be protected as part of the overall sustainability and safety of a workplace;

(4) Although it should be interpreted as an extrema ratio, firing an employee to protect the others might be considered acceptable, pursuant at least to Italian law.

It does not mean that entrepreneurs are free to fire as they wish. It means that the interest of many shall prevail on the freedom of the few in cases where the latter can damage the former.

However, nothing is new under the sun: Legal systems are accustomed to dealing with conundrums in which any possible balance between the interests at stake sounds — and is — unjust.  

Emanuela Truffo is a partner at Studio Legale Jacobacci e Associati in Milan, Italy. She specializes in contentious and non-contentious intellectual property matters and commercial litigation across a wide range of local and international practices. She has developed expertise in negotiation and drafting of agreements such as licence, non-disclosure, non-compete and coexistence agreements concerning IP rights and copyright as well as for commercial transactions.

Photo credit / treety ISTOCKPHOTO.COM

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