Covid-19 vaccination studies have yielded positive results and the rate of people vaccinated in many countries has reached a large majority. However, the prospect of vaccination mandates has led to a serious debate on their legality within the scope of Human Rights Law, Personal Data Protection Law, and especially Labor Law. Consequently, the legal obligation to be vaccinated has become an area of contention in Labor Law and there have been various disagreements about their impact on employee contracts for those who refuse to be vaccinated, yet demand to maintain their current position as an employee. In many countries such as France, Germany, Russia, and the United States, legislative studies have been made regarding vaccination obligations for employees working in certain industries. Additionally, vaccination is not mandatory for employees by law in many countries including Turkey, and instead, the situation is mitigated with paid leave or regular testing.
As a matter of law in Turkey, employers may not impose vaccination obligations on their employees. In accordance with Article 17 of the Turkish Constitution (“the Constitution”), compulsory application of a vaccine, which is a medical intervention, is prohibited except for medical obligations in cases that are enumerated in relevant laws. In other words, vaccination obligations can only be brought by law in accordance with the relevant constitutional provisions. Therefore, neither institutions, organizations or the parties to collective labor agreements can prescribe compulsory vaccination under the Turkish Constitution.
In light of the recent developments, some Turkish legal experts have argued that the Covid-19 vaccine could be included within the scope of Articles 57 and 72 of the General Public Health Law (“the GPHL”) and could be considered a mandatory vaccine as these provisions impose a vaccination obligation for the diseases listed in the articles. However, these arguments remain the minority. The authors who expressed this opinion, later stated that the regulation in the GPHL is not sufficient for mandatory vaccination application, based on the decisions of the European Court of Human Rights (“the ECHR”) and the Turkish Constitutional Court (“the TCC”), and that a more explicit legal regulation must be introduced in order to impose mandatory Covid-19 vaccinations on the public.
In addition, some Turkish legal experts have argued that compulsory vaccination could not be considered a measure that employers could take within the scope of the employee’s personal protection obligation, pursuant to Article 417 of the Turkish Code of Obligations (“the TCO”). These authors stated that in a legal system where the law does not prescribe mandatory vaccination, it is not a necessary precaution for the employer to ensure that all employees in the workplace are vaccinated without exception. Furthermore, some Turkish legal experts have argued that a vaccine mandate is also not within the scope of the employer’s right to manage. Additionally, it was stated that whether the employee is vaccinated or not is a decision regarding the personal life of the employee and that the legislator supports this opinion, therefore it is beyond the scope of the employer’s right to manage. Moreover, the existence of a person’s bodily integrity and the right to freely dispose of his/her body on the basis of human rights is an issue that should not be ignored when evaluating whether employers can impose mandatory vaccine requirements on their employees and subsequently terminate the employment contracts of those who refuse to get vaccinated.
On the other hand, mandatory vaccination necessarily makes employers aware of their employees’ vaccination status and triggers Article 20, paragraph 3 of the Constitution regarding the protection of personal data, which requires a specific provision of law or the express consent of the person concerned for the processing of personal health data. Information regarding whether an employee is vaccinated is health data as well, and is included
within the scope of the protection of sensitive personal data in accordance with the Law on the Protection of Personal Data No.6698. (“the PDPL”). Pursuant to Article 6, paragraph 2 of the PDPL, it is prohibited to process sensitive personal data without the explicit consent of the relevant person. However, in accordance with Article 6, paragraph 3 of the PDPL; “Personal data concerning health and sexual life may only be processed, without seeking explicit consent of the data subject, by the persons subject to a secrecy obligation or competent public institutions and organizations, for the purposes of the protection of public health, operation of preventive medicine, medical diagnosis, treatment and nursing services, planning and management of health-care services as well as their financing.” Herein, the issues of determining whether the employee’s consent is valid and based on free will, and the employees’ unwillingness to share the information about whether they have been vaccinated or not, come to the fore about the obligation of Covid-19 vaccination. According to the notice published by the Ministry of Labor and Social Security on September 3, 2021, employers can request vaccination information and test results from employees, however, this data can only be processed without explicit consent by the workplace doctor. Additionally, it should be noted that this health data information should not be included in the employee's personnel file and even though the employer can request this information in accordance with the Ministry’s notice, this data should be processed in line with PDPL.
As can be seen, the necessity of vaccination has been the subject of different opinions in various fields such as human rights, protection of personal data, labor law, and their effects between the employee and the employer. For this reason, although it cannot be determined that there is an obligation for an employee to be vaccinated, there are quite controversial opinions about whether employers can terminate their employment contracts with a valid reason based on the fact an employee has not been vaccinated. Since there is no clear legal regulation on this subject, at first glance the refusal to get the Covid-19 vaccine does not prevent employees from maintaining their status as an employee, nor does it constitute a valid reason for the termination of employment contracts. For this reason, a group of authors is of the opinion that employers may not justifiably or validly terminate employees’s contracts who are not vaccinated or refuse to be vaccinated.
However, there are some opinions arguing that in accordance with the nature of the profession and the field in which an employee works, employers may be permitted to exceptionally terminate an employment contract for a just or valid cause on basis of the employee’s vaccination information. Nevertheless, it should be emphasized that in line with the above reasons, an employee’s refusal to be vaccinated on the grounds that the employee’s right not to be vaccinated is one of their personal rights and that this right is protected at the constitutional level. As a result, employers should not act contrary to the Constitution and no sanction should be imposed against employees who violate an employer’s instructions to be vaccinated. Therefore, even though there is currently no dominant doctrine, opinion, or settled judicial jurisprudence in Turkish Law on the subject, the mere fact that an employee is not vaccinated cannot be just or valid cause for termination. It should be noted that since the law does not impose a vaccination obligation even in the presence of the public and public employees, the absence of vaccination of an employee cannot be interpreted as a sanction against the employee and cannot result in termination. Consequently, necessary legal regulations should be put into force as soon as possible in order to end these discussions and to regulate this imminent issue in a more adequate way.