Chi non si vaccina rischia il licenziamento – La spiegazione del magistrato Raffaele Guariniello sull’argomento. Le ultime notizie di attualità tutte le ultime news aggiornate dall’Italia e dal mondo.
“Tutelare la salute significa vaccinare il maggior numero possibile di persone”. Anche nel caso del vaccino contro il Covid. Lo dice al Fatto Quotidiano Raffaele Guariniello, precisando che “non è un’indicazione ‘morale’, è ciò che prevede la legge”.
Chi non si vaccina rischia il licenziamento, la spiegazione del giudice Guariniello
“Il principio per cui nessuno può essere obbligato a un trattamento sanitario se non per disposizione di legge è previsto dalla Costituzione – spiega il magistrato -. L’art. 279 del Testo Unico della Sicurezza sul Lavoro impone al datore di lavoro di mettere a disposizione ‘vaccini efficaci per quei lavoratori che non sono già immuni all’agente biologico. Da somministrare a cura del medico competente’. Il Covid-19 rientra tra gli agenti biologici, peraltro compreso nel gruppo dei più insidiosi, come stabilito da due decreti legge che hanno recepito una direttiva europea. Quindi, a norma di legge, essendo ora a disposizione un vaccino per il Covid (l’agente biologico), il datore di lavoro è tenuto a mettere ‘a disposizione’ vaccini efficaci. Stiamo parlando di milioni e milioni di persone, dipendenti (e non) privati e pubblici”.
“Se è vero che la legge dice ‘mettere a disposizione’ – afferma Guariniello – e dunque non obbliga nessuno a vaccinarsi, è anche “vero che la stessa norma impone al datore di lavoro ‘l’allontanamento temporaneo del lavoratore’ in caso di inidoneità alla mansione ‘su indicazione del medico competente’. E come può il medico non esprimere un giudizio di inidoneità se il datore di lavoro, proprio su parere del medico competente, ha messo a disposizione il vaccino, poi rifiutato dal lavoratore?”.
“La sorveglianza sanitaria non serve solo a tutelare il singolo lavoratore – prosegue il giudice -, ma anche tutti gli altri. La Corte Costituzionale lo ha ribadito più volte: la tutela della salute è un diritto dell’individuo e un interesse della collettività. La legge prevede l’obbligo di allontanare il lavoratore e di adibirlo ad altra mansione, ma solo ‘ove possibile’. La Cassazione ritiene che tale obbligo di ‘repechage’ (ripescaggio) non può ritenersi violato quando la ricollocazione del lavoratore in azienda non è compatibile con l’assetto organizzativo stabilito dall’azienda stessa. Insomma, il datore di lavoro è obbligato a predisporre misure organizzative per tutelare il lavoro. Ma se questo non è possibile si rischia la rescissione del rapporto di lavoro”.
Una giusta causa di licenziamento?
“Lo stato di emergenza non consente i licenziamenti – risponde Guariniello -, il lavoratore fragile ha diritto allo smart working. Ma in futuro il problema potrebbe presentarsi. Qualcuno potrebbe lamentare la violazione della libertà personale di non sottoporsi al vaccino. Potrebbe sì, ma per avere ragione dovrebbe prima cambiare la legge. Altrimenti la normativa è chiara nel prevedere la messa a disposizione del vaccino, l’allontanamento e la destinazione ad altra mansione ‘ove possibile’ del lavoratore che si rifiuti inidoneo”.
Fonte: Adnkronos
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