Italy: only the occupational physician i.e. not the employer can collect employee vaccination information (Italian Data Protection Agency)

While getting inoculated against Covid-19 is not compulsory in Italy, an issue currently being debated among labor lawyers is whether or not employers can terminate the employment contract of someone (or not hire someone) who refuses the Covid-19 vaccination. On 17 February, the Italian Data Protection Agency (Garante Per La Protezione Dei Dati Personali- GPDP) set an important milestone by publishing a guide (here) on the processing of work-related Covid-19 vaccination data. The GPDP states that employers cannot ask employees to provide information about their vaccination status, and are not entitled to process this data, even with the employee’s consent. Similarly, employers cannot ask occupational physicians for the names of vaccinated employees. Employers can only obtain from the occupational physician a certification of an employee’s ability to perform a specific task. ‘Pending legislative intervention,’ which may make a Covid vaccination a prerequisite for certain occupations or activities, the GPDP believes that the protective measures, which are provided for in situations involving direct exposure to biological agents in the workplace (e.g. in the health sector), are to apply. In any case, it is the responsibility of the occupational physician, and not the employer, to process workers’ health data and to check a worker’s suitability for a particular task, which if relevant could include referring to the worker’s vaccination status. Employers will also have to implement the measures indicated by the occupational physician in cases of an employee’s partial or temporary unfitness for work. Conscious of the mounting criticism that the application of these measures actually hinders Covid-19 prevention, on 23 February the GPDP President, Pasquale Stanzione, affirmed in the Rome-based newspaper Il Messaggero that the GPDP has always supported and promoted health prevention, but alongside “essential guarantees so as not to condemn each one of us to forms of biomonitoring, the impact of which on one’s liberty is much more invasive than it seems.” The GDPD is not the only institution having to grapple with this question. According to the business daily newspaper Il Sole 24 Ore of 23 February, INAIL, (the National Institute for Insurance against Accidents at Work), intends to seek opinion from the Ministries of Labor and Health on how to deal with workers who have contracted Covid-19 in their workplace, subsequent to having refused the vaccine, and particularly in the health sector context.