Vaccination Practices in Employment Relationships

29.09.2021

GİRİŞ INTRODUCTION

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 physical 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 relevant to this relationship. The relationship between the employer and the employee 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 TERMINATE THE EMPLOYMENT CONTRACT OF AN UNVACCINATED EMPLOYEE?

It is the employer’s legal obligation to protect the health of employees at the workplace. In this context, the employer may take pandemic-related measures to protect the health of other employees in the workplace. For example, the employer may require the wearing of masks in the workplace, even if it is not explicitly mentioned in the law. This also applies to vaccination. The employer may restrict unvaccinated employees from entering the workplace.

In the statement shared by the Ministry of Labor and Social Security dated 03.09.2021, it is stated that employers may require employees who are not vaccinated to take a PCR test once a week. As explained above, there is no legal difference between the PCR test and the vaccine, both will be considered as an interference with bodily integrity and such an obligation can only be imposed by law. In this context, the statement made by the Ministry is not binding for employers. The employer may also refuse to allow entry to the workplace with a PCR test within the scope of the right of management. Again, the restrictions to be imposed on the employee who needs to come to the workplace every day and the employee who can work remotely may also differ.

CAN THE EMPLOYER TERMINATE THE EMPLOYMENT OF AN EMPLOYEE WHO IS NOT VACCINATED?

The fact that the employer cannot force all employees to be vaccinated does not prevent it from terminating the employment contract of employees who are not vaccinated. An employment contract is a private law contract and can only be terminated in the cases and procedures specified in the law. In this context, the fact that the employer cannot force all employees to be vaccinated does not mean that the employment contracts of all employees who are not vaccinated can be terminated.

As mentioned above, the employer may restrict non-vaccine employees from entering the workplace. However, some employees can fulfill the obligations imposed on them in the employment contract by working remotely without coming to the workplace. In this context, if it is possible for an employee to work remotely, the fact that he/she is not vaccinated does not require termination of the employment contract. In other words, the employer cannot terminate the employment contract of an employee who can work remotely only because he has not been vaccinated. Such a termination would be unlawful.

Within the framework of these explanations, it is possible to say that the employer cannot require all employees to be vaccinated within the scope of the right of management, but may restrict the entry of employees who are not vaccinated to the workplace. Whether the employment contract of the unvaccinated employee can be terminated should also be evaluated within this framework. In addition, the principle of “termination as a last resort”, which is a fundamental principle in labor law, must be taken into account from the very beginning in decisions to be taken regarding non-vaccinated employees. Accordingly, if it is possible for the non-vaccinated employee to fulfill the obligations specified in the employment contract by working remotely, the employer must transfer this employee to remote work. If the non-vaccinated employee can’t work remotely, then the employer is obliged to evaluate whether there is a vacant post or position where the employee can work remotely, and if there is such a position, the employee must change his/her position and transfer to this position where he/she can work remotely.

If it is not possible for the employee who has not been vaccinated to work remotely, if there is no vacant position suitable for him/her to work remotely, in this case, it may be evaluated that the employee can’t fulfill his/her obligations under the employment contract. The employer should inform the employee that the employee can’t fulfill his/her obligations under the current conditions and that the employment relationship cannot continue in this way and should give the employee a certain period to get vaccinated. If the employee does not get vaccinated within the time given by the employer or declares from the beginning that he/she will not get vaccinated, then the employer may request the employee’s defense and then terminate the employment contract for valid reasons.

In our opinion, if the employee who cannot work remotely is not vaccinated, the employer may terminate the employment contract for reasons arising from the incapacity of the employee. The Court of Cassation has defined the valid termination due to the incapacity of the employee with the statement “For the reasons arising from the incapacity of the employee to grant the possibility of valid termination of the employment contract, the employee must be unable to fully or partially fulfill the obligations arising from the employment contract at the time of termination due to his personal abilities and characteristics”. Here, it can be stated that the employee cannot fulfill the obligations arising from the employment contract due to physical incapacity. However, under the principle of last resort, it should first be evaluated whether there is a position where the employee can work remotely. If there is no such position or if the employee has not accepted to work in such a position, then the employer should explain the situation to the employee and give a certain period to fulfill the obligations arising from the employment contract (in other words, to vaccinate). If, at the end of this period, the employee is still unable to fulfill the obligations arising from the employment contract, then the employee’s defense may be taken and the employment contract may be terminated for valid reasons.

CONCLUSION

1. Although it may seem like a simple medical procedure, vaccination is an interference with a person’s bodily integrity. The right to inviolability of bodily integrity is one of the most fundamental rights of the individual. This should be taken into account in the evaluations to be made.
2. The employer cannot require all employees to be vaccinated. The request in question necessitates an assessment between the employer’s right to management and the inviolability of the employee’s bodily integrity, and it would be unlawful to require a medical practice that will continue to have an effect outside the workplace within the scope of the right to management.
3. Within the framework of occupational health and safety provisions and management rights, the employer may restrict non-vaccine employees from entering the workplace. In this case, if the employees can work remotely, the remote working system is switched to. If the employee can work remotely, it would be unlawful to terminate his/her employment contract only for not being vaccinated.
4. If it is not possible for the employee who has not been vaccinated to work remotely, then it can be said that the employee cannot fulfill his/her obligations arising from the employment contract due to his/her physical inability. In such a case, it is possible to terminate the employee’s employment contract for valid reasons. However, all actions should be taken by taking into account the principle of termination as a last resort, it should be evaluated whether there is another position where the employee can work remotely, if there is no such position, the employee should be given a certain period to be vaccinated by explaining the situation to the employee, after which the employment contract should be terminated by requesting a defense. 
5. Although labor law contains many public rules, it is an area of private law and the principles of public law cannot be expected to be applied exactly here. For example, while the obligation of the administration to require all its citizens to wear masks is an obligation that can only be imposed by an explicit legal provision, the employer can impose such an obligation on its employees based on occupational health and safety provisions. Therefore, the fact that labor relations take place in the field of private law, that the employment contract is easy to terminate, especially for the employee, and that the rules applied in the workplace are only valid during working hours should be taken into account in the evaluations to be made.