Can the Italian employer request the green pass from employees?
Better to summarise the current heterogeneous and unclear scenario.
First of all, there is a guideline on vaccination.
The competent doctor is the key person, the only one entitled to process the health data of the workers and to verify their suitability for the specific job (Privacy Guarantor June 13, 2021; Legislative Decree no. 81/2008).
It is therefore the competent doctor who, having assessed the specific company situation, identifies vaccination as necessary or not and, consequently, the employee as suitable or not.
The employer only has to ensure that employees are not assigned to the specific job task without the prescribed suitability judgment.
It is therefore difficult to think differently on the subject of green certifications.
Both in terms of employment and labor law and privacy.
The situation exposed would lead to the exclusion of the possibility for the employer to request the green pass directly from its employees, overcoming the passage of the competent doctor.
And by reasoning, on the contrary, on the new DL 105/2021, we come to the same conclusion.
The related art. 3 introduces art. 9bis in Legislative Decree 52/2021, imposing from August 6th, 2021, in the white area, the need for the green certification for access to the following services and activities:
- restaurant consumption at the table indoors
- shows open to the public, sporting events and competitions
- museums, other cultural institutes and places and exhibitions
- swimming pools, swimming centers, gyms, team sports, wellness centers, even within accommodation facilities, limited to indoor activities
- festivals and fairs, conferences and congresses
- spas, theme and amusement parks
- cultural centers, social and recreational centers, limited to indoor activities and with the exclusion of educational centers for children, including summer centers, and related catering activities
- gaming rooms, betting rooms, bingo halls and casinos
- public competitions
The owners or managers of these services and activities must verify, guaranteeing the protection of personal data, the presence of the green certification.
The provision, in hindsight, says nothing about the employees of these activities and services.
With a view to consistency, having the Legislator identified the presence of the green certification for users as necessary for these activities and services, it seems difficult to say otherwise for workers.
This reinforces (in part) the above reasoning which leads to the exclusion of the employer from requesting the green certification directly from workers, as well as for the vaccine, without going to the competent doctor.
In this context, there are those who, increasingly, with a reasonable foundation, identify the solution to the problem in collective bargaining.
The Italian law would already assign to collective bargaining the right to intervene on the vaccination obligation and, consequently, on the green pass.
Through a collective agreement, in respect and protection of workers, the exposed criticalities could be overcome, jointly identifying the need for a vaccine or green pass, lightening the workload and, above all, the responsibility of the competent doctors.