One of the most important inventions of the 21st century is undoubtedly the COVID-19 vaccine, with respect to its affirmative effect on public health. Before its invention, humanity had been battling a substantial rise in the number of COVID-19 cases, and the vaccine managed to raise hopes of controlling the pandemic. Likewise, Turkey, especially the Turkish Ministry of Health, has taken a lot of steps towards having individuals become more conscious of the importance of vaccination, in an effort to decrease the number of cases. Recently, the total number of shots administered has reached more than 119 million.
As the vaccination program continues, some controversial opinions regarding whether vaccination should be mandatory have been raised. The biggest issues are those raised between employers and employees. For instance, some corporations in Turkey have announced that employees who are not vaccinated can carry out their work from home but cannot enter the workplace. The employees’ reaction to this announcement was rather negative, as they claimed vaccination cannot be made mandatory. The government has announced that vaccines are not mandatory, however, instead, it brought in certain restrictions. With its announcement dated September 3, 2021, the Turkish Ministry of Labor and Social Security (Ministry) paved the way for employers to request mandatory COVID-19 tests from their unvaccinated employees. The Ministry stated that employers are required to inform all of their employees about the protective and preventive measures against the health and safety risks that may be encountered in the workplace. The Ministry also requested that employers, separately and in writing, inform those employees who have not completed their COVID-19 vaccination. It has been made mandatory for the employees who are not vaccinated after receiving such information to be notified by their employers regarding the possible consequences of a definitive diagnosis of COVID-19, in terms of labor and social security legislation. Most importantly, as of September 6, 2021, employers will be able to request that those employees who are not vaccinated against COVID-19 take a mandatory PCR test once a week.
The main controversy is whether all the measures taken due to the COVID-19 pandemic limit the fundamental rights and freedoms guaranteed by the constitution, given that both vaccination and tests are an intervention that violates physical integrity. The fact that these measures are taken through announcements, and not through laws, also creates additional controversy. On the other hand, employers have extensive occupational health and safety obligations and run the risk of being liable in the case of occupational accidents resulting from COVID-19. In this regard, employers are required to take all necessary measures to protect the health of their employees and prevent them from being exposed to occupational accidents resulting from COVID-19, which makes it very hard to strike a balance between the fundamental rights and freedoms and protecting public health.
It does not seem possible, at present, for employers to require their employees to get vaccinated, and terminating the employment agreements of employees who refuse to get vaccinated would be risky. Employers can implement encouraging internal regulations for their employees such as: (1) relying on COVID-19 measures (e.g., social distancing, mask requirements, etc.), (2) imposing remote working (if the current position of the employee is not suitable for remote working, the employee can be transferred to a position suitable for remote working by obtaining a written and wet-signed consent within six business days), (3) sending employees on paid leave on the day of vaccination, (4) covering transportation costs to the hospital for the employees who will be vaccinated, (5) starting the above-mentioned PCR test application, and (6) sending employees on annual paid leave. However, vaccination should not be a basis for different treatment. In other words, employers must make sure not to discriminate against unvaccinated employees and against those who refuse to provide a negative COVID-19 test result.
All in all, as the pandemic and the world’s fight against the virus evolves, the employers’ focus might have changed but COVID-19 will indisputably continue to be a trending topic for employers and their workforce for some time to come. Employers should continue to monitor all government authorities’ announcements and any possible legislative changes with respect to vaccination, and take the required actions.
By Sertac Kokenek, Partner, Esin Attorney Partnership