Does the revival of air transport also involve the vaccine?

By ASLA - Associazione degli Studi Legali Associati

di di Maurizio Corain*, Chiara Santoboni* e Mario Barbera *

Rome - Between the end of 2020 and the beginning of 2021, the vaccination campaign aimed at immunizing the SARS-CoV-2 virus, known as Covid-19, was launched globally.

Such an event, as well as its relative evolution, are at the center of attention not only of private citizens, but also of those operators in the production sectors, such as commercial aviation, who have suffered severely from the economic crisis caused by the pandemic and above all, from the consequent anti-contagion measures adopted, in various ways, by the States.

As a further reminder of these difficulties, lastly, the statements made by the CEO of Air France-KLM Benjamin Smith who, on the occasion of the presentation of the 2020 budget, defined the crisis that hit the air transport sector as an "unprecedented shock" ; the numbers of the Franco-Dutch group show, in fact, a negative impact of over 7.1 billion euros (of which one billion only in the fourth quarter after the “reopening” has already taken place).  These data are obviously not isolated, but, on their own, they represent an index of what and how serious the effects of the pandemic have been on the accounts of air carriers, with the consequent elimination of routes, staff cuts and implications for the entire induced globally. In this regard, just consider that, according to IATA (as per the press release of February 24, 2021, "Press Release: COVID-19 Cash Burn Continues - Urgent Preparations for Restart") the estimates for cash burn in 2021 have increased between the $ 75 billion and $ 95 billion of the $ 48 billion previously planned

If, however, the data relating to 2020 can only be merciless, the launch of the vaccination campaign has given back a glimmer of light; in fact, from the data reported by Johan Lundgren CEO of Easyjet to the BBC, already at the outcome of the first news about the effectiveness of vaccines, flight bookings have undergone an increase of over 50%, and, at the start of the vaccination campaign , the increase in bookings reached 250% more than in the same period of the previous year. It therefore appears evident that the demand for passenger air transport services is currently repressed, but that "the key to recovery is the vaccination campaign", said Mr. Lundgren.

It is precisely in order to increase passenger confidence in air transport that carriers have, already in 2020 (Emirates led the way already in April 2020 for passengers departing from Dubai), set up rapid tests at the airport, the negative outcome of which was a sine qua non for boarding.
From here, various initiatives of the same carriers (additional and integrated with the regulatory provisions issued by individual Governments) have been developed and implemented: from the continuous sanitization of vehicles, to the offer of greater flexibility of reservations, up to "Covid-Free" flights. "- with tests to be carried out 48 hours before the flight and, again, immediately before boarding (Alitalia, first in Europe for intercontinental flights, with the Rome Fiumicino - New York flight on 8 December 2020) which allow, for example, to avoid quarantine periods upon arrival.

According to a part of the sector (one above all, Alan Joyce CEO of Qantas), the next necessary step aimed at offering ever greater safety and, above all, an ever greater perception of safety on flights would be to request, for the purposes of boarding, a certificate of vaccination for Covid-19.
A vaccination obligation, therefore, not imposed by the competent legislator, but placed by a private subject as a condition for the conclusion of the air transport contract, thus making the renunciation of travel (if only by plane) a corollary of the choice not to get vaccinated (when carried out, of course, of one's own free will).

In this "route" are those initiatives, not only of carriers, but also of industry associations and airport managers aimed at creating real digital health passports that can allow passengers to demonstrate, by means of a QR Code directly from their mobile device, the result of the swab carried out by them and, possibly in the future, the vaccination. The apps currently being developed by IATA itself (the "IATA Travel Pass App") or, again, the one underway development by the World Economic Forum together with the Rockefeller Foundation (the “Common Pass App”), to which individual carriers have joined. Indeed, in the press release of February 24, 2021 by IATA (Press Release: COVID-19 Cash Burn Continues - Urgent Preparations for Restart) it is clear that vaccines and tampons will play a decisive role in the transport sector as well. Therefore, the IATA Travel Pass App will allow passengers to securely check their health data and share it with the relevant authorities. In addition, a growing number of airlines, including Air New Zealand, Copa Airlines, Etihad Airways, Emirates, Qatar Airways, Malaysia Airlines, RwandAir and Singapore Airlines, have made or committed to testing the efficiency of IATA. Travel Pass. According to De Juniac himself, CEO of IATA, "an efficient digital management of healthcare credentials is essential to restart the sector as the manual processes of managing healthcare credentials will not be able to manage the volumes of traffic once the sector is resumed. of transport. Therefore, there is a need for digital solutions to be secure, can interact with existing systems, can align with global standards, and respect data privacy. These needs are at the center of attention in the development process of the IATA Travel Pass. "
In the initial phase, it is believed that the IATA Travel Pass will focus on data relating to swabs carried out before departure, but, in the intentions of the association, there is already also to include the vaccination performed in the digital documentation.
According to what reported by TTG Italia (in the article "Health passports and flights: airlines accelerate" of 24 February 2021), the Lufthansa Group is preparing to take the field on the issue of the health passport, providing for certain flights (those on Istanbul from Frankfurt and New York Newark from Munich and Frankfurt), that "passengers traveling on these flights will receive an advance notification and a link to a portal where their contact details and certificates can be stored - informs the group in a note -. At the service center, the documents are checked. After the check, the customer receives an email confirmation if the certificates meet the entry requirements or feedback if the documents are not enough. Regardless of this, the original certificates must continue to be carried during the journey ”. 

Therefore, if the introduction of mandatory tampons and medical passports were only the first steps and air carriers would consider including the mandatory vaccines as a condition for boarding commercial flights, it will be necessary to consider the legitimacy of this obligation addressed, obviously, not only to passengers, but also to crews. 

Focusing the attention on the crew and the carrier's agents possibly employed in ground handling, we note the doctrinal current formed in Italy (developed by Prof. Pietro Ichino and Prof. Maurizio Del Conte, see the articles published by them such as insights published by Wolters Kluwer, respectively on January 8, 2021 entitled "Anti-Covid vaccine: can the employer impose it and, in case of refusal, dismiss the worker?" and on February 17, 2021 entitled "Anti-COVID vaccine -19: what solutions for the employer? ").
According to which, although there is no law requiring vaccination against Covid- 19, as long as the pandemic lasts, an entrepreneur would be allowed to request the relative vaccination as a safety measure to its employees who actually have the opportunity to submit to it. In other words, part of the Italian labor law doctrine believes that it is possible for the employer to impose vaccination on his employee.
Such a conclusion is motivated on the assumption that the employment contract is an evident example of the availability of very personal rights: with it, in fact, those who live from their work accept the limitation of their freedom and the right to be let alone that inevitably derives from " contractual contact ”, an essential object of the agreement. By engaging in close "contact" typically typical of this contractual relationship, each person accepts not only the obvious limitation of their freedom of movement, but also the possibility of the entrepreneur's inquiries into their aptitudes and their professional background, the possibility of being subjected to home medical examination by the competent inspection service, and so on. In the same way, those who live from their work accept the possibility that - even in the absence of any legislative provision from which the obligation of a specific vaccination for all derives - they are asked to get vaccinated, because the employment contract requires them to respect the directives , provided that they meet the fundamental requirement of reasonableness, given by the employer regarding the protection measures. 
In support of this doctrinal current, art. 2087 c.c. and art. 279 Legislative Decree 9 April 2008, n. 81 (TUSL-Consolidated Law on Health and Safety at Work). The first rule obliges the entrepreneur, public or private, to adopt "the measures which, according to the particular nature of the work, experience and technique, are necessary to protect the physical integrity and moral personality of the employees". From here, it is believed that the entrepreneur may well, in compliance with art. 2087 of the Civil Code, following a careful assessment of the specific risk in your company, require all your employees to be vaccinated, where this is concretely possible for them. Nor, it is believed, that the interested parties will be able to oppose the request for a vaccination certificate the prohibition of investigations pursuant to art. 8 St. Lav., Since having subjected themselves to the protective measure becomes, as a result of the employment contract, a relevant fact about their readiness to fulfill correctly. The other directly relevant provision is, as mentioned, art. 279 TUSL. The forecast refers to the risk of infection deriving from a "biological agent present in the processing" (c. M.); however, if the obligation is explicitly provided for by law for this specific risk, it is reasonable to believe that the same obligation imposes on the entrepreneur for the prevention of a risk of infection deriving from a highly contagious virus, of which any of the several people present at the same time in the closed company space in which the work activity is intended to take place.
To this extensive application of art. 279 TUSL objects that the protective rules on safety and hygiene in the workplace "are designed to prevent risks deriving from the workplace" and not risks from outside. But to overcome this objection it is believed that it may be sufficient to consider that the entrepreneur, in the exercise of his organizational power, is also required to assess and prevent the risks coming from external agents to the company, such as atmospheric agents, which the employees may be exposed in the performance of the service, the imprudent or even malicious behavior of third parties, or pathogens that a user of the service or a supplier may carry. In this regard, it should be noted, however, that the risk of infection with Covid -19, unlike the other risks of contracting infectious diseases, has been qualified by law as a risk of injury at work (Article 42, paragraph 2, Legislative Decree 18/2020, converted with Law 27/2020) precisely in consideration of the very high contagiousness and spread of the virus that causes this serious disease and the high probability that in a closed environment even a single person carrying the virus will transmit it to others: with this rule, the legislator has essentially considered the very fact of working in a company together with other people as a typical cause of the risk of Covid -19 infection. Which is enough for the employer to take full responsibility for this risk.
From this, it is plausible to assume that the carrier may require the crew to carry out the vaccine.

If a crew member refuses vaccination (in a way not justified by a proven medical-health personal impediment), part of the doctrine believes that the employee's refusal to vaccinate is in the abstract susceptible to being treated in the same way as the refusal to any other security measure, which in the most serious cases can lead to disciplinary dismissal, or, in less serious cases, to suspension from work until the pandemic has ceased: suspension which in this case, unlike the case of refusal justified by impediment of a medical nature, will not entail the right to economic treatment, or even, if the temporary replacement of the reluctant employee is impossible, to dismissal for objective reasons, subject to compliance with the block in place until the end of March 2021. In in summary, it is believed that, despite the legal reserve set by the Constitution, the employer can exist provide employees with vaccination against Covid -19 when it is concretely possible, based on three essential arguments:
- like almost all the absolute rights of the person, even the freedom to undergo or not undergo the anti-Covid-19 vaccination is subject to limitation by contractual source, even in the absence of a law that specifically regulates the matter;
- the international scientific community agrees on the urgent need to fight the Covid-19 pandemic through mass vaccination;
- when even the individual employer, in relation to the characteristics of the work organization in their company, sees vaccination against Covid -19 as a useful measure to appreciably reduce the specific risk of transmissionsion of the infection due to contact between people within the company, he has the contractual power/duty - and not only - to adopt this measure, recommended by science and experience, and to demand compliance by employees as part of the contractual obligation on them.

Going instead to analyze the further possibility, imagined by some carriers, to allow boarding and, therefore, the possibility of carrying out the transport, only to vaccinated passengers through a modification of the general contract conditions, it is believed that the position expressed can be exposed to criticism. 
Indeed, although, taking into consideration only the provisions of Article 1341 of the Italian Civil Code, a clause that imposes the obligation to vaccinate as a requirement for access to transport by the carrier may not be considered vexatious, any such clause is suitable for the following remarks. In the first place, this clause could be qualified as a condition affixed to the transport contract and therefore could be interpreted as follows: "the carrier's obligation to perform the transport exists on condition that the passenger undergoes vaccination".
It is clear that such a clause would be null and void since it qualifies as a purely potestative condition, depending on the transport event on the passenger's free choice to undergo vaccination or not. Secondly, even if such a clause is not interpreted as a condition, it can be considered that it cannot but be considered null because it is contrary to art. 13 of the Constitution.
In fact, pronunciation n. 471 of 1990 of the Constitutional Court which came to affirm, for the first time, that the "freedom" referred to in art. 13 of the Constitution also includes the freedom of each person to dispose of his own body. Thus, it has been legally recognized that the freedom to self-determine with regard to acts involving one's body has a direct constitutional foundation in the principle of personal freedom, with the consequence that the right of self-determination in reference to health treatments is no longer linked only to the right to health, but it is an expression of the individual's general right to freedom.

However, it should be held that a covenant provision cannot limit the freedom of self-determination of the individual and consequently limit the possibility of stipulating a transport contract.

Moreover, it cannot be argued that if a passenger does not intend to be vaccinated, he can choose to travel with another carrier that has not provided for such a clause, given that:
- if the clause were deemed legitimate, all carriers, in the abstract, could adopt it, with the consequent impossibility of the passenger to travel by air;
- the passenger may have to choose a carrier that is not competitive in quality, type and price of the services, with consequent alteration of the market.

Without prejudice to the higher perplexities, we will only have to wait to verify what are the choices that the carriers will adopt in order to recover.

*RP Legal & Tax

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