A recent Italian statutory decree (Decree 1 April 2021 no. 44) requires that front-line healthcare workers be vaccinated as a service condition. The Editorial on vaccination policies (part I) distinguishes between mandatory policies that seek to compel vaccination unconditionally and those that make vaccination a condition for engaging in certain activities. The first category includes vaccination that can be enforced with coercion, whose breach constitutes a crime, and incurs a civil or administrative fine. Under this classification, the new Italian legislation belongs to conditional policies. However, and as the Editorial itself states, this distinction is intended to identify the two ends of a spectrum rather than a rigid set of mutually exclusive categories. As a case in point - from the perspective of the Italian legal order - the new Italian law is better seen as a case of mandatory rather than conditional vaccination in light of previous cases of vaccination campaigns.
The law explicitly imposes an obligation to undertake vaccination on practitioners and those who work in healthcare structures and alike, both public and private, and pharmacies. It states that vaccination constitutes an essential requirement for such workers. The distinction between an obligation and a condition/requirement might just be a legal quibble. There are, though, legal reasons for arguing that there is a substantial difference between the two in the domestic context. The declared goal of the law (Article 4(1)) is generically to protect public health and specifically to assure safety conditions while assisting people during the pandemic. In other words, the most apparent legislative intent is not just that people do not get infected. The main objective is to ensure that healthcare structures, under a phenomenal strain, continue to deliver their services in conditions as safe as possible. The subjection to vaccination is not presented as a choice – "if you want to work, then get the jab" – but as a necessity. This is why the hypothetical normative scheme can be described as an obligation complemented by a sanction.
As explained by Michele Massa in his post for the Verfassungsblog (The Italian “No Jab, No Job” Law), the law provides a complex enforcement procedure managed by local health authorities that starts by compiling a list of non-immunized workers and professionals. The outcome is that non-compliant healthcare workers must be removed from any position entailing interpersonal contacts or any other risk of contagion. Theoretically, they may be redirected to tasks involving no social contact. However, this is impossible in most cases, and not at all feasible for private professionals (think of dentists who work in their private studio). Even where redeployment is logistically feasible, workers in the public healthcare system must accept a downgrade in their working position (with a correspondingly lower wage) if they are offered a different job within the organisation. In all other cases, workers are suspended with no salary. There is room to speculate about the nature of such an array of measures as either sanctions or conditions. My intuition is that it sounds a bit formalistic to present the refusal by a doctor to be vaccinated as a right to opt-out. She will almost certainly incur the penalty of not earning her wage as long as the state of emergency lasts. By exclusively putting the accent on the condition/requirement, one slightly shifts towards a question of eligibility or option. However, could we not describe as a right to opt-out the scenario in which one is happy to pay, say, a 1,000 euros fine to avoid the jab?
The conditional element is undoubtedly crucial in issues regarding vaccine passports and digital certification. As has been noted on this blog by Tom Douglas, "vaccine passport schemes differ from vaccine mandates in that they do not actively penalise those who refuse vaccination. Rather, they simply require those individuals to submit to social restrictions of the kind that are currently imposed on everyone in many countries". Here, I want to caution again on not taking too literally the distinction between obligations and conditions. Just consider in that regard the dispute around the "conditions" attached to the enjoyment of social benefits: it is hardly deniable that – through harsh sanctions, they amount in many cases to substantial obligations. Nonetheless, the declared legislative intent to make healthcare workers take vaccine jabs does make a significant difference within the Italian constitutional framework.
Under Article 32 of the Italian Constitution, nobody can be forced to undertake any medical treatment without a specific statutory law and provided the latter does not infringe human dignity. Compulsory vaccination is undoubtedly within the scope of Article 32. The first Italian commentators have all reckoned the legitimacy of the statutory decree on vaccination of front-line healthcare workers in light of that constitutional clause (see Benedetta Liberati, Gianluca Gardini, and Michele Massa). More specifically, the judgment by the Constitutional Court no. 5/2018 represents a benchmark case. In this judgement, the Court held that a statutory law dealing with compulsory vaccination against ten types of disease of teenagers under 16 was compatible with Article 32 of the Constitution. It postulated that this clause entailed a necessary balancing exercise between a person's right to health – including freedom of cure, the symmetrical right of everyone else, and the collective interest in public health. In this case, too, the main "sanction" is somehow traceable to a sort of condition, the prohibition to attend school. However, an administrative fine – albeit as mild as from a minimum of 100 to a maximum of 500 euros – is provided.
How, then, does the difference between mandatory and conditional policies matter? The point is that vaccine passports and digital certification measures are barely caught by Article 32 of the Constitution. Article 9 of the Statutory Decree 22 April 2021, no. 53 has regulated the issuance of Covid-19 green certificates to people that have been vaccinated, tested negative to a jab test, or recovered from Covid-19 infection. Other provisions within the decree establish that the Technical and Scientific Committee (see Italy: Legal Response to Covid-19, part II.D.28) can enact guidelines that reserve access to sports events, conferences, concerts, and other shows to whoever possesses a green certificate. It is not to say that these forms of encroachment on specific activities are entirely immune from constitutional scrutiny, such as non-discrimination and human dignity principles. However, they fall outside the grasp of Article 32 of the Constitution and its more stringent requirements.TWEET