Roma, 7 aprile – Nella G.U. n. 79 del 1° aprile 2021 è stato pubblicato il decreto legge n. 44 del 1° aprile 2021, recante la proroga, fino al 30 aprile 2021, delle disposizioni del D.P.C.M. del 2 marzo 2021 nonché ulteriori misure urgenti per il contenimento dell’epidemia da COVID-19, in materia di vaccinazioni anti SARS-CoV-2, di giustizia e di concorsi pubblici.
Con specifico riferimento alle misure in materia di vaccinazioni anti SARS-CoV-2, al fine di contenere e contrastare l’emergenza sanitaria causata dalla pandemia da COVID-19, all’art. 4 è stato previsto l’obbligo di sottoporsi alla vaccinazione gratuita per la prevenzione dell’infezione da SARS-CoV-2 per specifiche categorie di lavoratori che svolgono attività di cura e di assistenza medica. Precisamente, sono stati obbligati a sottoporsi alla vaccinazione anti COVID-19 – al fine di tutelare la salute pubblica e mantenere adeguate condizioni di sicurezza nell’erogazioni delle prestazioni di cura e assistenza, fino alla completa attuazione del ‘Piano strategico nazionale dei vaccini per la prevenzione delle infezioni da SARS-CoV-2’, e comunque non oltre il 31 dicembre 2021 – gli esercenti le professioni sanitarie e gli operatori di interesse sanitario che svolgono la loro attività nelle strutture sanitarie, socio sanitarie, pubbliche e private, farmacie, parafarmacie e studi professionali. Per tali soggetti la vaccinazione è stata elevata a requisito essenziale all’esercizio della professione e per lo svolgimento delle prestazioni lavorative. L’unico caso in cui viene meno l’obbligo vaccinale, o la vaccinazione può essere omessa o differita, è per accertato pericolo per la salute, in relazione a specifiche condizioni cliniche documentate, attestato dal medico di medicina generale.
È stata altresì prevista una dettagliata procedura per l’operatività dell’obbligo vaccinale e specifiche misure in caso di inottemperanza.
Precisamente è stato disposto che entro cinque giorni dalla data di entrata in vigore del provvedimento (cioè dal 1° aprile 2021), ciascun Ordine professionale territoriale competente trasmetta l’elenco degli iscritti, e che entro lo stesso termine i datori di lavoro degli operatori di interesse sanitario obbligati alla vaccinazione trasmettano l’elenco dei propri dipendenti con tale qualifica, con l’indicazione del luogo di rispettiva residenza, alla regione o alla provincia autonoma nel cui territorio operano. Entro i successivi dieci giorni dalla data di ricezione di entrambi i menzionati elenchi le Regioni e le Province autonome, devono verificare lo stato vaccinale di ciascuno dei soggetti rientranti negli elenchi. Nel caso in cui, dai sistemi informativi vaccinali non risultasse l’effettuazione della vaccinazione anti SARS-CoV-2 o la presentazione della richiesta di vaccinazione, la Regione o la Provincia autonoma deve segnalare immediatamente all’azienda sanitaria locale di residenza i nominativi dei soggetti che non risultano vaccinati. A seguito di tale segnalazione l’ASL di residenza invita l’interessato a produrre, entro cinque giorni dalla ricezione dell’invito, la documentazione comprovante l’effettuazione della vaccinazione, l’omissione o il differimento della stessa per i casi consentiti, ovvero la presentazione della richiesta di vaccinazione o l’insussistenza dei presupposti per l’obbligo vaccinale. In caso di mancata presentazione della documentazione attestate la vaccinazione, alla scadenza del termine dei 5 giorni, senza ritardo, l’ASL deve invitare formalmente l’interessato a sottoporsi alla somministrazione del vaccino anti SARS-CoV-2, indicando le modalità e i termini entro i quali adempiere all’obbligo. Mentre, in caso di presentazione di documentazione attestante la richiesta di vaccinazione, l’ASL deve invitare l’interessato a trasmettere immediatamente, e comunque non oltre tre giorni dalla inoculazione, la certificazione attestante l’adempimento all’obbligo vaccinale.
Decorso il termine dei tre giorni, l’ASL accerta l’inosservanza dell’obbligo vaccinale e, previa acquisizione delle ulteriori eventuali informazioni presso le autorità competenti, ne dà immediata comunicazione scritta all’interessato, al datore di lavoro e all’Ordine professionale di appartenenza.
L’adozione dell’atto di accertamento da parte dell’azienda sanitaria locale determina la sospensione dal diritto di svolgere prestazioni o mansioni che implicano contatti interpersonali o comportano, in qualsiasi altra forma, il rischio di diffusione del contagio da SARS-CoV-2. A seguito di tale sospensione il datore di lavoro deve adibire il lavoratore, ove possibile, a mansioni, anche inferiori, che non implichino contatti interpersonali o comportino, in qualsiasi altra forma, il rischio di diffusione del contagio da SARS-CoV-2, con il trattamento corrispondente alle mansioni esercitate. Ove non fosse possibile al datore di lavoro l’assegnazione a mansioni diverse, per il periodo di sospensione, al lavoratore non sarà dovuta la retribuzione, altro compenso o emolumento, comunque denominato.
La sospensione mantiene efficacia fino all’assolvimento dell’obbligo vaccinale o, in mancanza, fino al completamento del Piano vaccinale nazionale e comunque non oltre il 31 dicembre 2021.
Specifiche disposizioni sono state altresì previste per i lavoratori fragili (di cui al comma 2 dell’art. 26 del D.L. n. 18/2020). Nel dettaglio, per il periodo in cui la vaccinazione obbligatoria degli esercenti le professioni sanitarie e gli operatori di interesse sanitario è omessa o differita, e comunque non oltre il 31 dicembre 2021, il datore di lavoro (salvo quanto sancito nell’art. 26, commi 2 e 2-bis, del d.l. 17 marzo 2020 n. 18, convertito, con modificazioni, dalla legge 24 aprile 2020 n. 27) deve adibire i soggetti in possesso di certificazione rilasciata dai competenti organi medico-legali, attestante una condizione di rischio derivante da immunodepressione o da esiti da patologie oncologiche o dallo svolgimento di relative terapie salvavita, ivi inclusi i lavoratori in possesso del riconoscimento di disabilità con connotazione di gravità (ai sensi dell’art. 3, co. 3, della legge n. 104/1992) a mansioni anche diverse, senza però la decurtazione della retribuzione, in modo da evitare il rischio di diffusione del contagio da SARS-CoV-2. Per il medesimo periodo e al fine di contenere il rischio di contagio, gli stessi soggetti fragili, nell’esercizio l’attività libero-professionale, devono adottano le misure di prevenzione igienico-sanitarie indicate in uno specifico protocollo di sicurezza che sarà adottato entro venti giorni dal 1° aprile 2021 (data di entrata in vigore del d.l. n. 44/2021)
Nello stesso provvedimento, il legislatore ha ritenuto opportuno prevedere uno scudo penale per chi è impegnato nell’inoculazione del vaccino anti COVID-19, escludendone la punibilità per i fatti di cui agli artt. 589 e 590 c.p., verificatisi a causa della somministrazione del vaccino effettuata nel corso della campagna vaccinale straordinaria, quando l’uso del vaccino è conforme alle indicazioni contenute nel provvedimento di autorizzazione all’immissione in commercio emesso dalle competenti autorità e alle circolari pubblicate sul sito istituzionale del Ministero della Salute relative alle attività di vaccinazione.
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