With the Coronavirus (“Covid-19”), which has been in our lives since December 2019, the lifestyle with masks and social distance has become the new normal.
However, although we are used to this lifestyle, which is called the new normal,
covid-19 vaccines give the good news that we can return to the old days.
The implementation of covid-19 vaccines is also critical for the employer-employee relationship.
As the use of
the covid-19 vaccine has been approved,
vaccination campaigns and
vaccinations were started in December 2020 across the world and on January 13, 2021, throughout Turkey. While scientific authorities emphasize the importance of the vaccine, there are anti-vaccine masses, even though they are a minority.
These days, where vaccination studies continue at a great pace in
Turkey and approximately 750,000 people are vaccinated daily; another question in mind is the
problems that may be faced in
employer-employee relations if the employee is not
covid-19 vaccinated.
At this point,
vaccination incentives for
employees started to be implemented, especially in
global companies, within the scope of
employers' occupational health and safety obligations. So, can employers dismiss their employees for refusing to have
the covid-19 vaccine? Can they avoid hiring people who are not vaccinated? Due to the importance of the matter and the need for multifaceted evaluation, we approached this issue in terms of
Labour Law and Personal Data Protection Law (“PDPL”) legislation.
1- The approach in terms of PDPL:
In accordance with
PDPL legislation,
health data is considered a special category of
personal data. For this reason, information on whether people have a
vaccine report card/vaccinated is also considered health data. In order to process
health data by
the employer, as a rule, (i) the obligation to inform both employee candidates and employees shall be performed, and (ii) their explicit consent shall be obtained.
Evaluation in terms of Employee Candidates:
It is one of the obligations of employers under the legislation to observe the health of
their employees. For this reason,
employers' recruitment of only
employee candidates who have the
covid-19 vaccine can be considered as an administrative decision of the employer and the employer will be able to avoid hiring
such employee candidates. But it should be noted that
personal data is not used by employers in a way that causes discrimination. At this point, the attitude and approach of employers are of great importance.
In the procedure of selecting/interviewing
employee candidates, when requesting
vaccine information, it is obligatory to add information on
how the vaccine information will be collected and for what purpose it will be used in the privacy notice to be prepared for these candidates.
In terms of the obligation to obtain explicit consent, the question about whether they have been
vaccinated in the
employee application forms will be included as an optional field by specifically specifying the (*) sign, and this issue can be included in the explicit consent text.
Evaluation in terms of Employees:
Data on whether the
employees are
vaccinated against Covid-19 can only be processed by the occupational physicians by fulfilling the obligation to inform in order to encourage the employees to be vaccinated and/or inform them about the vaccine.
For employers to impose sanctions within the scope of
Labour Law regarding
their employees who do not prefer to be vaccinated, they shall; (i) obtain explicit consent from the employees, (ii) clearly state that vaccine information will be processed for this purpose in the PDPL privacy notices, and (iii) add this point to the workplace regulations and policies.
What is the Effect of Explicit Consent by the Employee?
First of all, it should be noted that even if the employee is vaccinated, the employee may not want to share this information with the employer, in such cases the employer does not have the right to obtain this information from the employee by force.
For this reason, an employee's employment contract cannot be terminated on the grounds that covid-19 vaccine information is not shared with the employer. If the employee's employment contract is terminated by the employer for this reason, the employee may file lawsuits that claim for re-employment, severance pay, notice pay, annual leave difference, and even discrimination compensation.
In addition, for explicit consent to be legally valid, it shall be (i) specific, (ii) based on information, and (iii) based on free will. In cases where the parties are not in an equal position or one of the parties is superior to the other, it is necessary to carefully evaluate whether the consent is given freely. This issue is clearly mentioned in the Guidelines of the Personal Data Protection Authority and it is stated that in the employee-employer relationship, in cases where the possibility of not giving consent to the employee is not provided effectively or if not giving consent will cause a possible negative situation for the employee, the consent cannot be accepted as being based on free will. In this context, a possible complaint or compensation lawsuit may be filed at any time by the employee, claiming that his/her will is not free.
2- Our Legal Opinion in Terms of Labour Law in the Light of PDPL Legislation
We would like to emphasize again that for
employers to take action according to the
vaccination status within the scope of
labour law, the employees shall first give explicit consent to the processing of vaccination information. For this reason, it would not be wrong to say that the process will actually be shaped according to whether explicit consent is obtained in accordance with the
PDPL legislation.
The first and most appropriate step that employers can take is to provide information that
encourages vaccination and specify the benefits of the vaccine, to publish publications, to prepare various brochures and videos, to provide collective/individual verbal notifications by the occupational physician instead of directly obliging employees
to be vaccinated against Covid-19.
Moreover, incentives by employers 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 in the scope of private health insurance should be evaluated. The main goal here is to increase the credibility of the vaccine and ensure that the vaccine reaches a wider audience. After all, with the additional benefits provided, a good impression will be created for employees to be vaccinated, and employees can be vaccinated at their request.
It should also be emphasized that the primary basic obligation imposed on employers during the
covid-19 pandemic is to ensure that necessary precautions are taken in the workplace in terms of
occupational health and safety (“OHS”), thus creating a risk-free working environment for all employees. Since vaccination is of great importance in reducing the effects of the
pandemic and creating a safe working environment in terms of OHS, the employer should consider its OHS obligations at every stage of its approach to vaccination.
On the other hand, there is no legal regulation or judicial precedent regarding the obligation to vaccinate
employees who are not vaccinated within the scope of OHS although they have the right to be vaccinated and to impose sanctions on these employees if they are not vaccinated. Moreover, it is necessary to remember that even governments around the world have not yet introduced
mandatory vaccination. However, although no guiding situation has been encountered under the laws and judicial precedent yet, our comments and opinions on the subject are as follows:
Is Mandatory Covid-19 Vaccination Deemed As Violation of Personal Rights?
While covering the obligations of employers, it would be necessary to mention the obligation to protect the personal rights of employees. Although it is intended to protect the health of other employees and to ensure the continuity of the work, the termination of the employment contract of those who have not been vaccinated without compensation for just cause may be considered as not
protecting the personal rights of the employee by the employer.
The personal right mentioned herein is the right
to refuse treatment/not to choose treatment. A person cannot be forced to be vaccinated, nevertheless, the possibility of termination of the employment contract for just cause should not be used against that person. Otherwise, the claim that the unvaccinated employee is exposed to violation of his/her personal rights and/or discrimination may come to the fore. In this case, it seems possible that the employer will face claims and lawsuits such as re-employment lawsuits and/or bad faith compensation, severance-notice pay-discrimination compensation.
Can an Employer Terminate the Employment Contract of An Employee Who Does Not Want To Be Vaccinated?
As we mentioned above, although the judiciary approach regarding this matter is not yet clear and there is no legal regulation on the subject,
the termination of the employment contract of unvaccinated employees with a valid reason, rather than a just cause without compensation, may be considered as a more appropriate way.
If the
employee is not vaccinated against
covid-19 despite all the information given himself/herself, the mandatory procedures on termination for valid reason will be followed and the defence of the employee regarding the issue will be obtained first. Because people may not want to be vaccinated due to different health problems, disability, pregnancy, or religious reasons. After this stage, the defence of the employee should be evaluated by seeking a solution to the question of how the continuation of the employment contract is possible, in line with the principle of termination being the last resort. For example, the employee can work from home, if possible, by changing the position/task of the employee and providing new training if necessary. We believe that the employment contract can be terminated for a valid reason, provided that every step, including this defence and recommendations for the continuation of the employment contract, is documented.
At this stage, against employers' obligation to protect the health of other employees; it is clear that the continuation of work of unvaccinated employees will result in an OHS risk. Even if there is no risk to the health of an employee who is not vaccinated, the possibility of disrupting the operation of the workplace should also be evaluated separately.
However, since the judiciary approach on the subject is not yet clear, it should be noted that even if termination is for a valid reason, there will be a risk of re-employment lawsuit and its results or bad faith compensation if the employee does not meet the necessary conditions to benefit from the provisions of job security.
Ultimately, our advice to employers -in order to ensure unity of practice at the workplace(s)- is to determine how they approach such cases and which procedures will be followed, and to act by providing a unity of practice without causing discrimination among employees, and by preparing documentation on process management if necessary.
Can An Employee Have Any Request in Case of Complications After Vaccination?
Assume that
the covid-19 vaccine is made mandatory by the
employer, the question arises at this stage whether the employer can be held responsible if any complications occur in the employee's body as a result of vaccination.
Although there is no direct regulation within the scope of the legislation, these days when vaccination continues at a great pace, it is discussed around the world that
if mandatory vaccination is applied by the employer at the workplace and a side effect/complication occurs due to the vaccine, whether this situation will be considered as a
work accident.
In accordance with our legislation, a
work accident is defined as events that occur during the workplace due to work carried out by the employer and immediately or later render the insured physically or spiritually disabled. The physical and mental damage to which the employee is exposed as a result of this event must be related to the work that he/she does. In addition, for the employer to be responsible for the work accident, it is necessary to prove that
the employer has not taken the necessary and adequate measures in the workplace or that the employee has contracted the disease in the workplace.
In the event that the
employer makes the vaccination mandatory and the employees, who have been vaccinated for this reason, experience a complication as a result of the vaccination, although the health of the employee is affected because the employer imposes an obligation, on the grounds that this practice of the employer has a preventive aspect to the spread of the pandemic; there are opinions that this situation cannot be considered as a work accident/even if it is considered, the employer cannot be held responsible for the work accident on the grounds that the causation does not exist. Contrary to this opinion, there are also opinions that employers should cover their employees ' related losses after vaccination, as they take the initiative to enforce vaccination. As we have stated many times in our article, since there are no precedents on the subject yet, we will experience the approaches of the courts to this issue together.