On the one side, the right to work and to receive a remuneration, established under the Italian Constitution; on the other side, the safeguard of “collective health”, which is provided under the Constitution, too. This is the main cause for discussion – not only at an institutional level – concerning the principles provided under art. 32 of the Italian Constitution. Although the article provides that nobody can be forced to undergo a certain health treatment unless established by the law, it also provides that the Italian Republic safeguards health as a fundamental right of individuals and interest of the community.
Therefore, the need to safeguard the community conflicts with an individual right and both are on the same level of the juridical hierarchy. Moreover, both must be coordinated with other constitutional rights, sanctioning the right to equality, to a job and to a remuneration (Articles 3, 4 e 36 of the Constitution).
It is subsequently difficult to find a way to coordinate both rights, although it is clear that any decision would have generated discussions and debates. Eventually, the intention of the Government to safeguard the need for “public health” prevailed, by progressively introducing different provisions, which, although they do not provide a real vaccination obligation, they indirectly do, according to many, as they subordinate the performance of the working activity to the possession of the green pass.
The declared objective is therefore that of preventing the spread of Sars-Cov-2 virus by promoting the vaccination campaign and ensure the full recovery of production activities and services, avoiding possible new restrictions that our economy cannot afford any more. Alternatively, the legislator, without prejudice to the safeguard of people exempted from vaccination – who, due to health reasons are not obliged to have a green pass – allows to obtain the green pass also through swabs, which, however, are not free.
This generated many protests and further constitutionality doubts by some jurists, as it burdens workers with the “cost” of the green pass, establishing it as the only alternative to the free vaccination. It is clear that in this particular historical moment, some contradictions are physiological and doubts are still many, though the necessary clarifications will arrive soon. But the important thing is the final objective.
Regardless of personal opinions, it is worth to point out the courage of the Italian legislator, as it is showing to the international community the way to contrast the pandemic. Appreciable is also the fact that the measures have been introduced progressively, so to gradually stimulate that part of the population that is most resistant to vaccination. This is an audacious decision that will hopefully reward the efforts of the community and, most of all, is a regulation that does not breach the Constitution, as it is based on the need to safeguard public health.
