Subject: COVID-19 Vaccine and Compulsory PCR Test in Terms of Labor Law
Introduction
Within the scope of the announcement titled “COVID-19 Precautions at Workplaces” published by the Ministry of Labor and Social Security on 02.09.2021, employees who are not vaccinated against COVID-19 may be required by the workplace/employer to take a PCR test once a week, as of 6 September 2021, and the test results will be recorded in the workplace in order to take necessary actions. In addition, with this information letter, the Ministry reminded the employers that they are obliged to inform all their employees about the protective and preventive measures against the health and safety risks that may be encountered in the workplace, and the employers were requested to inform their employees in writing, whose COVID-19 vaccine has not been completed.
COVID-19 Vaccine and Compulsory PCR Test That Required by the Employer
The employer is obliged to ensure the occupational health and safety of its employees and to take the necessary precautions in accordance with Article 4 of the Occupational Health and Safety Law No: 6331. On the other hand, the employee is obliged not to endanger the health and safety of other employees and to comply with the employer's occupational health and safety rules and instructions in accordance with the first paragraph of article 19 of the same law. Nevertheless; it is not legally possible for the employer to require employees to be vaccinated against COVID-19 even for occupational health and safety purposes, since the COVID-19 vaccine has not yet been made compulsory by legal regulation. Because according to Article 17 of the Constitution; “..Except for medical obligations and the cases written in the law, the physical integrity of the person cannot be touched; cannot be subjected to scientific and medical experiments without his consent.” except medically necessary and the cases written in the law, individuals' bodily integrity and immunity are protected. Some communicable diseases are listed in Article 57 of the General Public Health Law No. 1593, titled "Combating Contagious and Epidemics in the Country". It has been regulated that in case of the diseases mentioned in this article, vaccines can be administered as a precaution to patients or exposed to the disease. However, this law is quite old and no additions have been made regarding COVID-19 yet. Therefore, in our opinion, it is not legally possible for the employer to force its employees to be vaccinated without a legal regulation on this specific issue, otherwise, the individual's bodily integrity will be interfered with and his/her constitutional right will be violated.
In terms of the PCR tests, the explanations made for the COVID-19 vaccine are the same. The PCR test is a medical intervention performed by inserting an object into the body through the mouth and nose, and therefore it violates the immunity of the body. In this respect, the evaluation made about the vaccine is also valid for the PCR test.
With the announcement dated 02.09.2021 published by the Ministry of Labor and Social Security, it has been regulated that employees who are not vaccinated against COVID-19 may be required to have a PCR test once a week as of September 6, 2021, by the workplace/employer, but it should be noted that this announcement does not constitute a legal regulation.
Status Of The Employee Who Has Not Been Vaccinated and/or Refused to Get a PCR Test
In cases where the employees are not vaccinated or refuse regular PCR testing, an interpretation should be made within the framework of the principle of "Ultima Ratio". Likewise, the letter dated 17.09.2021 which has been sent to Union of Chambers and Commodity Exchanges of Turkey by Ministry, this issue was specifically underlined. As explained above, the employer will not be able to force the employee to be vaccinated or get a PCR test. However, in such a case, some precautions should be taken because the employee endangers public health, especially the other employees in the workplace.
Since the reflections of COVID-19 within the scope of labor law principles are unclear in terms of many issues, existing laws and other legal regulations are in need of interpretation in terms of implementation. For this reason, the explanations made while addressing the situation of the employee who is not vaccinated and did not have / do not submit a PCR test are not definitive. The statements made are the expression of our opinion in a fair and lawful manner, taking into account the relevant provisions of the Constitution, labor and social security law, labor law and practice. In line with the announcement titled “COVID-19 Measures at Workplaces” published by the ministry of labor and social security, the employer; if employees who are not vaccinated and/or do not submit PCR tests terminate their employment contracts for valid reasons within the scope of Article 18 of the Labor Law No 4857, it will be against to principle of “Ultima Ratio”. If the employer terminates the employment contract with just cause within the scope of Article 25 of the law because the employee has not been vaccinated and has not had/submitted a PCR test, this will be a disproportionate sanction. Instead, the employer may prefer the remote working method if the employee's job and position are suitable. Although it is stated in the Remote Working Regulation that the remote agreements will be made in writing with the mutual agreement of the employer and the employee, according to the 6th paragraph of the 14th Article titled “Transition to Remote Working” of the same law, if the remote working is to be implemented in the whole or part of the workplace due to compelling reasons, the transition to remote working it has been regulated that the request or approval of the employees will not be sought for. Although the concept of “Compelling Reason” in the relevant article is not clearly defined, in our opinion, the COVID-19 pandemic constitutes a compelling reason. For this reason, it is possible for the employer to switch employees who are not vaccinated and/or who do not give PCR tests during the epidemic and normalization process to work remotely without the employee's request or approval. Another option is unpaid leave. The employer can only take the employee on unpaid leave by obtaining the consent of the employee. It should be noted that compulsory unpaid leave implementation gives a right for the rightful termination of employment contract to employees.
In other respect, there are also opinions that considering the danger that unvaccinated employees may pose for other employees, the employer has the right not to let employees who are not vaccinated and who do not have PCR test to the workplace,the employee who avoids vaccination has to bear the cost of the PCR test himself, and even the employee's employment contract may be terminated for a valid reason by paying his legal rights.
Conclusion
Although the COVID-19 vaccine is the main advance that can be taken to ensure the strength of the singular first and afterward to acquire local area resistance, it isn't legitimately workable for businesses to drive their employers in regards to an issue that isn't compulsory inside the extent of current lawful guidelines. The spot of the COVID-19 vaccine and PCR test as far as labor law and the situation of the business and employees in lawful questions on this issue are very indistinct. The way that this uncertainty can be eliminated at the earliest opportunity and that the issues and loss of rights that might be experienced by and by can be forestalled is just conceivable with a elaborated and clear legal regulation in regards to these issues.