Considerations on some court judgments concerning the compulsory vaccination for healthcare workers in Italy

On 6 July 2022, a decree of a judge of the Ordinary Court of Florence created an intense discussion about the anti-Covid-19 vaccines and their regulation in Italy. By decree no. 7360/2022, the judge temporarily suspended the Order of Psychologists of Tuscany provision that prohibited a psychologist from practising her profession as she was not vaccinated. In reinstating the worker, the judge admitted the possibility for the worker to exercise “in any way (both in the presence and remotely) in the same way as her vaccinated colleagues”. Justifying his decision, the judge stated that “the suspension of the practice of the profession risks compromising the individual’s primary assets such as the right to his sustenance and the right to work expressed by art. 4 [Article 4 of the Italian Constitution], considered an expression of the freedom of the person and his dignity, which is guaranteed precisely by freedom from needs”. This decision was followed by very strong responses from various institutional organizations. The Order of Psychologists of Tuscany stated: “the healthcare association, which is the Order of the Psychologists of Tuscany, are obliged to respect the decree law 44 of 2021 about the vaccine obligation”. The president of the Italian National Association of the Order of Doctors (FNOMCeO) referred to a recent study that estimated approximately 19.8 million deaths were avoided in the world in a year due to the vaccine programmes and asserted that “such a fanciful precautionary measure cannot compete with the scientific data processed by the Imperial College of London and published in The Lancet Infectious Diseases or analysed by the [Italian] National Institute of Health”. Further, with reference to Italian law about Covid-19 compulsory vaccination of healthcare workers (HCWs), the president stated that these rules “if deemed contrary to the Constitution, can be referred to the Constitutional Court but should only be challenged on a legal point”. Even the Minister of Health commented angrily on the judgment saying it was “absolutely inadmissible and devoid of any scientific evidence”, a “judgment of which we must be ashamed”.Actually, in Italy, there have already been judgments whereby unvaccinated HCWs have been reinstated.According to these judgments, vaccination would be imposed on the worker not to protect his health but that of others, thus respecting the prerequisites of art. 32 of the Constitution. However, this obligation would be ineffective because “the person who has undergone the vaccination, can still become infected by the virus and can infect others”. The latter aspect would therefore elide the assumption that the vaccine obligation for HCWs would be compatible with art. 32 of the Italian Constitution, which is intended to protect collective health. The mandatory vaccination, according to the judges, would therefore be contrary to Articles 3 (right to equal social dignity and equality before the law) and 35 (labour protection) of the Italian Constitution, since, as an alternative to the vaccine, “the use of the much more efficient [Covid-19] swab” is not allowed. The decision of the Court of Florence did not bring any substantial changes, but upheld its decision using a controversial series of considerations relating to technical and scientific elements. In particular, the judge expressed some considerations about the failure of the decree (later transformed into law – Law of 28 May 2021 no. 76) on the vaccine obligation for HCWs. Specifically, the judge stated that this decree, rather than “prevent the disease and ensure safe conditions in the health field”, would instead have determined “a phenomenon opposite to what we wanted to achieve with vaccination, namely an overflow of infection with the formation of multiple viral variants and the prevalence of infections and deaths precisely among those vaccinated with three doses”. The judge also added that: