The issue of exemption from the anti-COVID 19 vaccine is a very topical issue. The issue deserves to be studied in depth in the light of the regulations in force, as well as of the application practice, with particular regard to the first jurisprudential rulings matured on this point. In this regard, the specific legal regime that characterizes the exemption certification with regard to the categories subject to the vaccination obligation will be highlighted, with particular reference to the obligation to justify the exemption and the possible consequences of its non-fulfillment.
Let's proceed with order.
The applicable rules and the first jurisprudential rulings
The art. 4-ter, introduced in the novel to the legislative decree 44/2021 by the legislative decree 172/2021, has, as known, extended the vaccination obligation (originally envisaged only for health personnel), among others, also to the personnel of the Defense sector. Now, as recently clarified by Cons. State, section III, n. 8454/2021, the exemption certificate, in accordance with the second paragraph of art. 4 of the aforementioned legislative decree 44/2021, must contain the specific indication of the pathology from which the interested party suffers, providing confirmation in the certification, both of the "Specific documented clinical conditions" that the "Health hazard" found.
The provision referred to in the aforementioned art. 4, paragraph 2, of legislative decree 44/2021 also applies to military personnel, as recalled by art. 4-ter: also for the military, therefore, the rule applies that the exemption certificate must be specifically motivated with regard to the elements indicated above.
This differentiates the exemption certificate for the categories subject to the vaccination obligation from that provided for the generality of citizens (for which the voluntary vaccination regime is currently in force, if under-fifties: art.9-f dl 22.4.2021, n. 52). For the categories to which the obligation does not apply, in fact, the aforementioned motivation must not be expressed at all, in accordance with the circular of the Ministry of Health of 4 August 2021.
Among other things, the TRGA of Trento clarified this once again with reference to health personnel (but the related topics can also be extended to the other categories subject to vaccination obligations), with presidential decree of 23 November 2021, n. 62.
In the aforementioned ruling, it was specified in this regard that, as mentioned, the procedure aimed at obtaining the exemption from vaccination for the prevention of SARS-CoV-2 infection is different for health personnel, subject to the obligation of vaccination , pursuant to art. 4 of Legislative Decree 1.4.2021, n. 44, with respect to the regime of the voluntary nature of this vaccination for the remaining part of the population. In the latter case, it is the responsibility of the vaccinator to issue a vaccination exemption certificate directly to the person concerned, for the purposes provided for by law, without indicating the clinical reason for the exemption (the anamnestic documentation is kept by the vaccinator who issues the exemption); on the contrary, art. 4, co. 2, Legislative Decree 44/2021 provides that the vaccination of healthcare personnel can be omitted or deferred only in the event of an ascertained health hazard, in relation to specific documented clinical conditions, certified by the general practitioner, then subject to a subsequent evaluation by part of the Healthcare Company, for the eventual issuance of a formal exemption provision.
It follows, by translation, given the reference of the second paragraph of art. 4 of legislative decree 44/2021 by art. 4-ter, that the exemption certification relating to military personnel must also be specifically motivated, so as to allow the Administration to which they belong to a review on the exemption itself.
Non-compliance with the obligation to state reasons and possible consequences
Considered so much, what can happen in the event that the soldier does not provide the Command to which he / she belongs a certificate of justified exemption?
The first concrete applications of the aforementioned discipline, just over a month after its entry into force, allow us to reconstruct a framework that has so far been rather varied, in which the Administration to which it belongs has sometimes deemed the certification provided unsuitable, with the consequent automatic suspension of the concerned military person, at other times it limited itself to requesting a documentary integration in advance, from which the motivation for the exemption could be deduced.
However, there have been cases in which the Command to which they belong has decided to request the aforementioned documentary production in order to reserve the right to evaluate not the conformity of the exemption, but the compatibility between the exemption itself and the persistent suitability for military service. .
In this last regard, it should be noted that the conditions for the exemption from the aforementioned vaccination are quite distinct from the conditions for obtaining eligibility for the service, subject to annual verification as is well known. If, therefore, the requests for document production supplementing a certification not bearing the relative motivation seem legitimate, where they are aimed at allowing the military administration to carry out the necessary review, it is doubtful that the same requests, where instrumental to allow a (new) judgment of suitability for the service, may also be considered compliant with the law.
In this regard, it is also noted that, pursuant to art. 4-ter, paragraph 3, of the aforementioned legislative decree 44/2021, not even the deed of ascertaining the non-fulfillment of the vaccination obligation, even if it involves the immediate suspension of the right to carry out the working activity, can affect the right to the conservation of the job position by the interested party. From this it follows that the position of the soldier who provides an exemption certificate (even if not correctly motivated) cannot be evaluated in pejorative terms compared to that of the soldier who is completely non-compliant with respect to the vaccination obligation.
Conclusions
At the conclusion of this brief examination of the discipline of certification of the exemption from the COVID 19 vaccine in the military field, it seems necessary to highlight the centrality of the motivation for the certification itself.
Excluding the applicability in this regard of the aforementioned circular of the Ministry of Health of 4 August 2021 and the necessary reference to the second paragraph of art. 4 of legislative decree 44/2021, as taken up by art. 4-ter of the same decree, military personnel are recommended to provide adequately justified exemption certificates. Doing so will allow the Military Administration to carry out the necessary verification activity and at the same time avoid requests for documentary integration, which, although strictly speaking not always validly founded, could even risk compromising the continuation of the service relationship itself.
Photo: US Navy / US Air Force
