Vaccination Practices in Employment Relationships
The repercussions of the global Covid-19 pandemic on legal systems have sparked new debates. With the emergence of effective vaccines against the Covid-19 virus, widespread vaccination programs have been initiated in many countries. Articles published in international peer-reviewed journals, reports from the World Health Organization, and vaccine efficacy studies conducted in countries where vaccination is administered, demonstrate the effectiveness and benefits of Covid-19 vaccines, such as Coronavac and Pfizer/BioNTech, which are also implemented in Turkey. Experts emphasize that the only way to mitigate or eliminate the adverse consequences of the Covid-19 pandemic is through approved vaccines administered by authorized institutions.
Nevertheless, there is a significant number of individuals who have chosen not to get vaccinated. In this context, there is a heated debate about whether individuals who are not vaccinated can be compelled to receive the vaccine, and if not, what kind of restrictions can be imposed on them. This article aims to evaluate how vaccination practices may affect the relationship between employees and employers, whether employers can compel their employees to get vaccinated, and whether the employment contract of an unvaccinated employee can be terminated.
LEGAL NATURE OF VACCINATION PROCESS
Although the vaccination process may seem like a simple procedure, it constitutes a medical intervention affecting individuals’ bodily integrity. This definition can also be observed in decisions made by the Constitutional Court (Constitutional Court Decision: AYM Halime Sare Aysal/2017/1789).
The fact that the vaccination process constitutes an intervention in bodily integrity means that regulations made by the authorities in this regard must comply with constitutional rules. The right to bodily integrity and inviolability is one of the most fundamental rights of an individual. Whether the administration can make vaccination compulsory is the subject of another article; this article will focus on the evaluation of the issue within the framework of private law. However, a point often overlooked or not adequately addressed in legal opinions and articles regarding vaccination is that the PCR test is also a medical intervention directed at bodily integrity and subject to the same legal limitations as mandatory vaccination.
CAN EMPLOYERS MANDATE VACCINATION FOR EMPLOYEES?
First and foremost, it should be noted that the relationship between the employer and the employee is a matter of private law. The principles applicable to the relationship between the public administration and citizens in public law may not always be directly applicable to this relationship. The relationship between the employer and the employee is one that exists within the workplace and/or during working hours, and it can be terminated easily by either party. On the other hand, the relationship between the government and an individual affects nearly all aspects of life, is general in nature, and is continuous. Therefore, the rules applicable to this relationship are different. For example, making it mandatory for citizens to wear masks can only be imposed by the government through legislation, whereas an employer can mandate mask-wearing in the workplace even if it is not explicitly mentioned in the law, based on workplace health and safety regulations or the employer’s management rights.
However, the fact that the relationship between the employer and the employee is a matter of private law does not mean that the employer can exercise any kind of discretion over the employee. The limits of the employer’s management rights are defined by law, regulations, and judicial decisions. In this context, whether an employer can mandate vaccination for employees can be answered by evaluating the conflict between the employer’s management rights and the employee’s right to bodily integrity and inviolability.
In our opinion, it is legally not possible for an employer to mandate vaccinations for all employees. Such a mandate affects not only the employee’s employment but also their life outside of work, and it involves a permanent alteration of the employee’s bodily integrity (for the duration of the vaccine’s effectiveness). Interpreting the employer’s management rights so broadly as to encompass such a requirement is not legally feasible.
However, the fact that an employer cannot mandate vaccinations for all employees does not prevent the implementation of restrictions on the entry of unvaccinated employees into the workplace or the termination of employment relationships with unvaccinated employees. In other words, while an employer cannot mandate vaccinations for all employees, they can restrict the entry of unvaccinated employees into the workplace and, as explained below, terminate employment relationships in certain situations.
CAN AN EMPLOYER RESTRICT THE ENTRY OF UNVACCINATED EMPLOYEES INTO THE WORKPLACE?
Protecting the health of employees in the workplace is the legal obligation of the employer. In this context, the employer can take measures to protect the health of other employees in the workplace regarding the pandemic. For example, even if not explicitly mentioned in the law, the employer can mandate the wearing of masks in the workplace. This also applies to vaccine mandates. An employer can restrict the entry of unvaccinated employees into the workplace.
According to a statement by the Ministry of Labor and Social Security dated September 3, 2021, employers can request unvaccinated employees to undergo PCR tests once a week. As explained earlier, there is no legal distinction between PCR tests and vaccines; both are considered interventions in bodily integrity and would require a legal basis, such as legislation, for a mandatory requirement. Therefore, the announcement made by the Ministry does not have any binding effect on employers. Employers, within the scope of their management rights, can also choose not to allow entry to the workplace based on PCR test results. The specific restrictions applied may vary depending on the nature of the work and whether remote work is possible for the employee who is required to be physically present at the workplace every day.
CAN EMPLOYER TERMINATE THE EMPLOYMENT CONTRACT OF AN UNVACCINATED EMPLOYEE?
The fact that an employer cannot compel all employees to get vaccinated does not prevent the termination of employment contracts for unvaccinated employees. An employment contract is a private law agreement and can only be terminated in cases and through procedures specified by law. Therefore, the inability of the employer to compel all employees to get vaccinated does not necessarily mean that the employment contracts of all unvaccinated employees can be terminated.
As mentioned earlier, the employer can restrict the entry of unvaccinated employees into the workplace. However, for some employees, it is possible to fulfill the obligations set forth in the employment contract through remote work, which is referred to as telecommuting. In this context, if an employee can work remotely, the fact that they are not vaccinated does not justify the termination of the employment contract. In other words, the employer cannot terminate the employment contract of an employee solely because they have not been vaccinated. Such termination would be unlawful.
Within the framework of these explanations, it can be said that the employer, within the scope of its management rights, cannot compel all employees to get vaccinated, but it can restrict the entry of unvaccinated employees into the workplace. The question of whether the employment contract of an unvaccinated employee can be terminated should also be considered in this context. In addition, the fundamental principle in labor law known as the “last resort principle,” which states that termination should be a last resort, must be taken into account from the outset in any decisions related to unvaccinated employees. Accordingly, the employer must, if possible, transition the unvaccinated employee to remote work if it is possible for the employee to fulfill their obligations remotely. If remote work is not possible for the unvaccinated employee, the employer must assess whether there is a vacant position or role where remote work is possible and, if so, facilitate the transition of the employee to this position, allowing them to work remotely.
If remote work is not possible for an unvaccinated employee and there is no vacant position suitable for remote work, and if it is determined that the employee cannot fulfill their obligations under the employment contract under the current conditions, the employer may need to take certain steps. In such a situation, the employer should inform the employee that it is not possible for them to fulfill their obligations under the employment contract given the current circumstances, and that the employment relationship cannot continue in this manner. The employer may give the employee a specific period of time to get vaccinated. If the employee refuses to get vaccinated during this period or explicitly states that they will not get vaccinated, the employer can then request the employee’s defense and subsequently terminate the employment contract for a valid reason.
In our opinion, if an employee who cannot work remotely refuses to get vaccinated, the employer may terminate the employment contract for reasons related to the employee’s inadequacy. The Court of Cassation defines the valid termination due to reasons arising from the employee’s inadequacy as follows: “For the reasons arising from the inadequacy of the employee to grant the possibility of valid termination of the employment contract, it is necessary that the employee, in terms of their personal abilities and characteristics, is unable to perform the obligations arising from the employment contract completely or partially at the time of termination.” Here, it can be argued that the employee is unable to fulfill the obligations arising from the employment contract due to their physical inadequacy. However, in accordance with the principle that termination should be a last resort, the first consideration should be whether the employee can work remotely in a suitable position. If there is no such position available, or if the employee does not agree to work in that position, then the employer should explain the situation to the employee and provide a specific period for them to fulfill their obligations (in other words, get vaccinated). If, after this period, the employee is still unable to fulfill the obligations arising from the employment contract, then the employer can request the employee’s defense and terminate the employment contract for a valid reason.
- Although it may seem like a simple medical procedure, vaccination is an intervention in an individual’s bodily integrity. The right to bodily integrity is one of the most fundamental rights of an individual. This should be taken into consideration in all evaluations.
- Employers cannot make vaccination mandatory for all employees. Such a request necessitates an evaluation between the employer’s management rights and the employee’s bodily integrity, and mandating a medical procedure that will continue to have an effect outside the workplace would be illegal within the scope of management rights.
- Employers can restrict the entry of unvaccinated employees into the workplace in accordance with occupational health and safety regulations and management rights. In this case, if remote work is possible for employees, a remote work system should be implemented. If remote work is possible for the employee, terminating the employment contract solely because they are not vaccinated would be illegal.
- If remote work is not possible for an unvaccinated employee, it can be argued that the employee is unable to fulfill their obligations arising from the employment contract due to physical inadequacy. In such a case, it is possible to terminate the employment contract for a valid reason. However, taking into account the principle that termination should be a last resort, all necessary steps should be taken. It should be evaluated whether there is another position where the employee can work remotely, and if such a position does not exist, the employee should be informed of the situation and given a certain period to get vaccinated. After this period, if the employee is still unable to fulfill the obligations arising from the employment contract, the employment contract can be terminated after requesting the employee’s defense.
- Labor law, although containing many public regulations, is primarily a field of private law, and the direct application of public law principles cannot be expected in this area. For example, the obligation for all citizens to wear masks can only be introduced through a clear legal provision, while an employer can impose such an obligation on employees based on occupational health and safety regulations. Therefore, the fact that employment relationships take place in the field of private law, the ease of termination of the employment contract, and the applicability of workplace rules only during working hours should be taken into account in all evaluations.