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The IBA’s response to the war in Ukraine
Necdet Can Artüz
Bozoğlu İzgi Attorney Partnership, Istanbul
Simge Kublay Can
Bozoğlu İzgi Attorney Partnership, Istanbul
With the arrival of Covid-19 in our lives, many discussions have arisen regarding labour law regulations. One of these is whether it is possible for employers to request mandatory vaccination and PCR testing. The reason why this issue is so important is that while Turkish labour law legislation obliges employers to undertake occupational health and safety measures, data protection law does not allow employers to process health data without explicit consent. In this context, how an employer may process such data without any violation of data protection law remains a problem. The main question is what if an employee does not share its health data with the employer, how may the employer then comply with its obligations in terms of occupational health and safety? If the employer fails to fulfil this obligation and the employee suffers any harm, in any dispute the fault may be attributed to the employer and compensation liability may arise, because PCR testing is also a part of occupational health and safety measures. In order to prevent such risks to employers’ liability, employers should act in compliance with labour legislation along with data protection legislation.
The issue of whether an employer may impose vaccinations on employees should be evaluated within the scope of the inviolability of bodily integrity, which is regulated under Article 17 of the Constitution of the Republic of Turkey. The inviolability of bodily integrity is regulated as a fundamental right and freedom in Turkish legislation. In accordance with the Constitution, it is only possible to limit fundamental rights and freedoms by enacted law. The Constitutional Court, in a decision on mandatory vaccination practices for children, stated that an intervention in fundamental rights and freedoms would only be possible if a clear, specific, proportionate and definitive legal basis existed. Since Turkish legislation does not include such arrangements within the scope of mandatory vaccination for Covid-19, the employer may not impose mandatory vaccinations on employees in the workplace. Otherwise, this would be a violation of the Constitutional rights of employees. However, it is not against the Constitution to promote vaccinations in the workplace and to provide information stating the benefits of a vaccine, so long as there is no attempt to impose it. Employers may produce brochures and videos for information and incentive purposes, as well as provide collective or individual information from the workplace’s physician, but in a way that does not compel vaccination in the workplace.
The same explanations mentioned above also apply to tests for Covid-19. However, according to an official letter issued on 3 September 2021 by the Ministry of Labour and Social Security, employers should notify all their employees about preventive and protective measures against risks to health and safety in the workplace. In addition, the letter also stated that, as of 6 September 2021, employers may request mandatory PCR tests, once a week, from employees who are not vaccinated against Covid-19, and that the test results will be recorded at the workplace for necessary procedures.
After all, employers are obliged to eliminate risks in the workplace, analyse the risks and take all necessary measures within the mandatory provisions of the Turkish labour legislation. The obligation of employers to provide a healthy and safe working environment and the aforementioned letter of the Ministry of Labour and Social Security are regarded as the legal basis for employers to request mandatory PCR testing from their employees before they come to the workplace.
Pursuant to the Law on the Protection of Personal Data No 6698 (LPPD), health data may be processed only with the explicit consent of the employee, unless otherwise regulated clearly by law. Personal data relating to health and sexual life may only be processed by ‘persons, authorised public institutions and organisations that are under a confidentiality obligation’ without the explicit consent of the data subject only for the purposes of protecting public health, preventive medicine, medical diagnosis, treatment and nursing services, planning and management of health-care services, as well as their financing. LPPD does not include a regulation allowing employers to process health data for any purpose without the explicit consent of the employee. Therefore, as a first stage, employers must obtain their employees’ explicit consent in order to process their vaccination data.
Once employees’ vaccination data are being processed in compliance with the LPPD, the employer may use that data for occupational health and safety measures in the workplace. One of the measures involves requesting PCR test results from employees who are not fully vaccinated. Moreover, the employer may prevent employees, who are not fully vaccinated and fail to submit their PCR test results, from working at the workplace, if this is to ensure health and safety in the workplace. Apart from this objective, an employer may not segregate vaccinated and unvaccinated employees due to its obligation of equal treatment.
As emphasised in detail, an intervention in fundamental rights and freedoms is only possible by legal regulation, therefore the employer will not be able to force an employee to undertake a vaccination as a condition of working. However, vaccinations may be imposed mandatorily as a condition of employment if a legal regulation has been enacted, and employers become authorised in a clear, precise, specific and proportionate manner in order to protect public health.
Although still a subject of debate, it is widely accepted that employers may not dismiss employees solely for refusing to get vaccinated. This is mainly because vaccination against Covid-19 is not mandatory by law. This kind of termination may constitute unlawful dismissal and also discrimination.
Employers are obliged to inform employees about the measures they must take to ensure occupational health and safety. These measures may be included in employment contracts, its annexes, workplace regulations and may also be displayed in visible places in the workplace. Employees must comply with measures that are in accordance with occupational health and safety legislation, and also as part of the duty of loyalty.
If an employee is aware of the precautions but nevertheless violates Covid-19 regulations, fails to comply with quarantine obligations or attends the workplace despite being infected with Covid-19, and the employee’s employment is then terminated, an assessment will have to be made of whether the grounds for the termination should be based on a valid reason or a just cause.
Termination of an employee’s employment contract for violating Covid-19 regulations must be based on valid reasons, such as the employee’s conduct or occupational or physical inadequacy. For instance, if an unvaccinated employee declares that he or she will not disclose the PCR test’s result at all, the employment may be terminated based on the employee’s conduct conflicting with regulations in force in the workplace.
An important issue to be considered in a termination for a valid reason is the employer’s need to observe the principle of ‘termination as a last resort’ or ultima ratio. In this context, an employee who is not vaccinated and does not disclose his or her PCR test’s result may be informed and warned about the issue, and the employee may then be placed on unpaid leave with the consent of the employee; annual leave may be required to be taken and remote working may ordered if suitable for the nature of the work. Despite all these opportunities, if the employee still insists on working at the workplace without sharing the result of the PCR test, then termination of the employee’s contract will not be contrary to the ultima ratio principle.
Another possibility is for the contract to be terminated without compensation and immediately for just cause, if the employee’s actions constitute a just cause. In accordance with Labour law, if an employee:
the employer will have the right to terminate the employment contract immediately for just cause and no obligation will arise to pay for any period of notice or provide severance pay.