With wide-scale use of COVID-19 vaccines all around the world, vaccination and PCR testing policies at workplaces have become a hot topic both for employers and employees. Although there has not been any legislative activity yet, the Ministry of Labor and Social Security issued a general letter to guide the workplaces about the possible vaccination and PCR testing policies to be adopted, which has left questions whether employers could require mandatory vaccination or regular PCR testing from employees under occupational health and safety obligations.
Under Turkish Code of Obligations, employers are obliged to take occupational health and safety measures and protect the employee’s health, physical and mental integrity under the duty to protect the employee. In parallel, as per the Occupational Health and Safety Act, employers must ensure the occupational health and safety of all employees. In this regard, employers are under the obligation to provide COVID-19-safe working environments to the practically possible extent. The practical steps that may be taken by employers could vary depending on the nature of each workplace. However, there are several guidelines published by certain governmental authorities during the pandemic, and employers may pay regard to the recommendations set out under these guidelines to ensure at least minimum protection. These publications mainly focus on emergency planning, cleaning and hygiene rules, personal protective equipment, and advice on travels and meetings.
As per the Turkish Constitution, a person’s physical integrity cannot be intervened with except for medical necessities and exceptions set out by laws. COVID-19 vaccination is not mandatory under the applicable laws; indeed, the Ministry of Health announced that it is currently applied on a voluntary basis. Therefore, it is at least clear that employers cannot mandate employee vaccination.
The Ministry of Labor and Social Security issued a general letter on September 2, 2021 regarding the vaccination and PCR testing policies that employers may implement at workplaces. The letter suggests that employers are under the obligation to;
i. inform all employees about the protective and preventive measures against the potential health and safety risks at the workplace and also inform the employees who are not fully vaccinated in writing separately,
ii. inform the unvaccinated employees, who are still not vaccinated upon receiving the above-mentioned information, about the potential results of receiving a definite COVID-19 diagnosis due to non-vaccination, in scope of the employment and social security legislation.
Employers are also entitled to request their unvaccinated employees to have regular PCR testing once a week on a mandatory basis as of September 6, 2021, and the test results must be recorded at the workplace for the necessary actions. According to the general letter, mandatory PCR testing is regulated as a voluntary mechanism at the employer’s discretion, considering different working methods of all workplaces. For instance, an employer may not find it necessary to introduce mandatory PCR testing for employees who are working remotely, whereas it would be necessary at a crowded workplace which requires physical attendance under occupational health and safety obligations.
Other than the general letter of the Ministry of Labor and Social Security, there is a circular of the Ministry of Internal Affairs which regulates mandatory PCR testing for certain activities. As per the circular, unvaccinated persons must be requested a negative PCR test result before their attendance to i) collective activities such as concerts, movies and theatres; and ii) intercity travels by plane, bus, train or other means of public transportation, except for private vehicles. In this regard, business managers/organizers must query the attendee’s vaccination status/medical history (for the immunity period scientifically acknowledged for COVID-19) or negative PCR test result granted within the past 48 hours. In other words, the circular mandates providing a negative PCR testing in terms of the unvaccinated attendees to the activities set out therein, and it is implemented by the scholars that this requirement also applies to the unvaccinated employees of the relevant workplaces.
Under the current guidelines and the stance against COVID-19 vaccination, the majority of Turkish academics take the view that the employee’s refusal to get COVID-19 vaccine would not constitute just cause for termination, and the principle of termination being the last resort must be regarded for employee’s refusal to get vaccinated. However, where employees refuse to be tested and provide their PCR testing results, this can be construed as valid grounds for termination depending on the circumstances. In this regard, employers are recommended to obtain a written statement from the employees and resort to alternative solutions first depending on the nature of the work and the workplace. These alternative solutions could be encouraging employees to take the vaccine, having the employee work remotely or take annual leave, isolating the employee from the vaccinated employees, if possible, etc.
The fact that these arrangements are introduced by general letters/circulars is highly criticized, and the need for a legislative act still stands to clear out the questions and ambiguities in practice.
For data privacy and protection aspect, please see Processing of Personal Data Related to COVID-19 Test Results and Vaccination-Infection Status of Employees by clicking here.
First published by ILO - Employment & Benefits Newsletter in Nov 17, 2021.