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Between health and individuals: vaccines, the sensitive imbalance.

Between health and individuals: vaccines, the sensitive imbalance.

During these days, we have read some criticisms regarding the directions offered by the Italian Data Protection Authority on the employee’s vaccination. It is about a theme which is very sensitive and controversial, in trying to find the best solution in order to mix the exigencies of public health and individual rights. This question between health and individuals is collective and under the same Article 32 of the Constitution, which qualifies the health right like a fundamental right and, at the same time, a public interest. 

For this reason, in order to guarantee a “high” balance among the individual dimension and the collective one, the Constituent has required a reinforced rule of law, by preventing that any heath processing, although legislatively proposed, cab breaches “those limits imposed by the respect of the human being”, considered complementary to the protection dignity. 

Since this precondition we need to start in order to better understand the terms of the question, by clarifying also some mistakes addressed to the Italian DPA, who is blaming to have mediate obstacles to the health prevention action, in particular in work places. 

We need to clarify an essential point: the Italian DPA has not declared anything, by the editorial side, on the theme of enforceability of the worker vaccination and the security in the workplace. The Authority has limited itself to clarify that in cases of direct exposition to “biological agents” during work, as in health, which involves high levels of risk, the provisions in force on the “special measures of protection” provided for such contexts, pending any further legislation.

And how the regulatory limits are, in this area, stringent is demonstrated by the order in which the Labour Judge of Messina has deemed illegitimate the imposition, at the regional level, the obligation to vaccinate (flu) for health workers, because in violation of the reserve of law (state) on the subject.

But more generally, on the basis of the division of responsibilities enshrined in the legislation between doctor and employer, the Guarantor has clarified that it is up to the former and not the latter to treat the health data of workers, verifying the suitability to the “specific task” also, where appropriate, on the basis of the data relating to vaccination, according to the indications provided by the health authorities.

On the other hand, it will be the employer’s responsibility to implement the measures indicated by the competent doctor in cases of partial or temporary unfitness for the assigned task. This being the division of responsibilities between the occupational physician and the employer, it is clear that the employee’s consent to a different circulation of information (in addition to being invalid because it is given in conditions of imbalance, first and foremost contractual), would in any case be irrelevant because it could not alter this distinction of duties, which cannot be derogated from on the basis of mere private autonomy.

Respect for the competences and the legislative procedures should not be confused with mere formalism or, worse, with an obstacle to the preventive health action that the Italian Data Protection Authority has shown in recent months to support and promote, combining it with the indispensable guarantees not to condemn each of us to forms of bio-surveillance whose impact on freedom is much more invasive than it may appear.

Far from being an obstacle to the public interest, the Authority’s contribution has served, if anything, to make us more effective, but no less free; not to give in to the sirens of the Korean (or even Chinese) model, while carrying out farsighted prevention action.

Moreover, confusing guarantees with bureaucracy is likely to make us forget that the rule of law is that of government sub lege and not sub homine: a distinction that, instead, is central to a democracy.

SOURCE:FEDERPRIVACY

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