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Legal status of the employer regarding personel who do not want to be vaccinated during the pandemic

By Esin Sümer.


Individual rights and freedoms can only be necessarily limited by the Constitution and laws, for reasons such as public health and safety. However, there is no legal regulation in Turkish legislation that obliges citizens and/or employees to be vaccinated in the midst of the Covid-19 outbreak.


For this reason, it is possible to say that whether or not to be vaccinated is a personal decision, the personnel cannot be forced to do so, and as a result, the employment contract of the unvaccinated personnel cannot be terminated for this; without payment of compensation, no warning can be given to them solely for this reason because not being vaccinated is not a faulty behavior, it is a choice.


However, we believe that the whole event should not be viewed only from the perspective of the personnel. In addition to personal rights, there are mandatory obligations both in the Constitution and laws in terms of protecting individual and public health in business life. There is no doubt on the contagiousness of the Covid-19 epidemic and the danger it poses for all individuals, especially in business life. Therefore, the employer is obliged to take the necessary measures on behalf of its employees and customers, and the employee is obliged to take care of the people they come into contact with in business life, along with their individual freedom.


In this regard, the 4th article of the Occupational Health and Safety Law No. 6331 imposes clear obligations on the employer and the 19th article on the worker. Therefore, if the majority of workers in a workplace are vaccinated and another group is not vaccinated solely by personal choice without a just and valid reason (considering the epidemic, which has no other drugs, etc., only approved vaccines), these personnel are obliged not to endanger the occupational health of others. It would not be wrong to say that it can be considered as a violation.


Again, although there is no application area in this process, the European Court of Human Rights made a precedent decision on 08.04.2021 regarding the obligatory childhood vaccinations in the scenario of a pre-pandemic event, and under certain conditions, a policy in this direction was included in the European Convention on Human Rights. It stated that it is not an inconsistency, that mandatory vaccinations are legal and may be necessary in democratic societies. In this decision, they also stated that they could consider compulsory vaccination to fight an epidemic disease as a legitimate aim for the protection of public health. This ECtHR decision is very important because, according to Article 48 of the ECHR, to which Turkey is a party, all states party to the convention are obliged to comply with the ECHR decisions. However, as we tried to indicate above, the legitimacy of a legal regulation on making vaccinations compulsory in the case of this decision is a matter of debate, and it should not be forgotten that there is no such decision or draft in Turkey yet.


When all the above-mentioned issues are evaluated together, one of the views in the doctrine at the point of what the employer can do in the face of such a personnel, is the written defense of the personnel as to why they were not vaccinated first, and if there is no justifiable reason for their health (allergy, etc.), their rights will be paid. We are of the opinion that the employment contract can be terminated for valid reason (severance and notice pay).


However, simply refusing the vaccine will not be enough for this termination to be accepted as a termination with valid reason and for the personnel not to win the possible reemployment lawsuit.


At this point, we are of the opinion that maximum attention should be paid to the issues that we try to summarize below. Because the court will evaluate every event that comes before the court in its own concrete situation and conditions, and will look at whether the termination has occurred for a valid reason or not in the eyes of "that personnel”.

  • In this case, first of all, it should be checked whether the personnel's position/task is in contact with other workers. Again, absolute care should be taken by the employer to the principle of "termination being the last resort" before termination takes place. At this point, the situation of each non-vaccinated personnel should be evaluated on its own, as examples and what the employer can do until termination can be quite optional.

  • Again, in terms of personnel who have not been vaccinated before termination, process management should be established by the employer on the principles of communication and information. Persuasive and encouraging practices should be carried out about getting vaccinated, information should be given that encourages vaccination and the benefits of the vaccine, publications should be published, various brochures and videos should be prepared, and collective/individual verbal information should be provided by the workplace doctor.

  • In fact, employers' incentives such as providing additional benefits to employees vaccinated against COVID-19, granting additional administrative leave, covering travel expenses for going to health centres to be vaccinated, obtaining private health insurance for employees and including the side effects of the vaccine under the scope of private health insurance are also on the agenda.

 

About the Author

Esin Sümer graduated from Marmara University Faculty of Law in 2008. She is fluent in Turkish and English and is currently a senior associate lawyer at Esenyel&Partners Law Firm.


Esin works in the fields of Litigation and Dispute Resolution, Labor Law, Law of Obligations and Enforcement Law by providing legal consultancy services to domestic and foreign companies.



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