CAN EMPLOYERS MANDATE COVID-19 VACCINE FOR EMPLOYEES? 2 February 2021

Following the vaccine developments related to the Covid-19 epidemic, which affected the whole world, the most important issue on the agenda was the indecisions about the vaccine and whether the vaccine could be compulsory for citizens by the countries. On the other hand, aside from the discussions on making the vaccine mandatory regarding Covid-19 with government policies; considering the negative effects of the epidemic in commercial life, it is also important to examine whether the employers can impose vaccination obligations on their employees and whether the employment contracts of employees who do not agree to be vaccinated can be terminated for justified reasons.

1. Can Covid-19 Vaccine Be Compulsory?

We made a detailed assessment of the compulsory vaccination with government policies with our article titled "Can Covid-19 Vaccination Be Compulsory In Turkey?”. However, limited to the subject of this article, it is necessary to briefly mention the legal regulations that will form the basis of compulsory vaccination.

Accordingly, in order to prevent the Covid-19 epidemic, constitutional regulations are the first issue that should be evaluated regarding the compulsory vaccination. In this context, in Article 17/2 of the Constitution titled “personal inviolability, corporeal and spiritual existence of the individual"; “The corporeal integrity of the individual shall not be violated except under medical necessity and in cases prescribed by law; and shall not be subjected to scientific or medical experiments without his/her consent. " provision is included. While protecting the corporeal integrity of the individual with the relevant regulation; On the other hand, it is regulated that compulsory medical intervention can be made in cases where there is medical necessity or in cases prescribed by law. Otherwise, the consent of the persons is considered essential in terms of any medical intervention.

The legal regulation, which includes provisions on epidemic diseases and vaccines in Turkish law, appears as the Public Health Law No. 1593 ("Law”). Consequently, in the 57th Article of the Law, epidemic diseases to be fought are counted one by one. In the event of the epidemic diseases listed here, it is made possible to vaccinate those who are exposed to this disease in accordance with Article 72/2 of the Law. However, due to the absence of the Covid-19 epidemic among the diseases considered as epidemic diseases in this Law of 1930; within the scope of current legal regulations, it is not possible to impose compulsory vaccination with government policies in terms of the Covid-19 epidemic; It is foreseen that the compulsory vaccination can only be brought about by a legal regulation. Nevertheless, whether employers can force their employees to vaccinate if a legal regulation does not impose compulsory vaccination in order to prevent the Covid-19 epidemic; whether the refusal of the employee to have Covid-19 vaccine constitutes justified reason for termination of the employment contract by the employer is another matter of discussion.

2. What Are the Authorities and Obligations of Employers for the Prevention of the Covid-19 Pandemic?

In terms of ensuring occupational health and safety at workplaces, the provisions of Law No. 6331 on Occupational Health and Safety are applied. Accordingly, the employer is obliged to ensure the health and safety of the employees. Therefore, according to Article 4 of the aforementioned Law titled "the general obligation of the employer", employers take the following precautions and measures while ensuring the work-related health and safety of employees.

• Take the measures necessary for the safety and health protection of workers, including prevention of occupational risks and provision of information and training, as well as provision of the necessary organization and means and shall ensure that these measures are adjusted taking account of changing circumstances and aim to improve existing situations
• Monitor and check whether occupational health and safety measures that have been taken in the workplace are followed and ensure that nonconforming situations are eliminated
• Carry out a risk assessment or get one carried out
• Take into consideration the worker's capabilities as regards health and safety where employer entrusts tasks to a worker
• Take appropriate measures to ensure that workers other than those who have received adequate information and instructions are denied access to areas where there is life-threatening and special hazard

Similarly, in accordance with paragraph 2 of Article 417 of the Code of Obligations numbered 6098; the employers are obliged to take all necessary safety measures to ensure occupational health and safety in the workplace and to keep the tools and equipment in full. In this context, the employer's obligation to take care of the employee is the equivalent of the employee's loyalty duty within the scope of the employment contract. Therefore, the employer is responsible for taking all kinds of measures to protect the life, health and personality of the employee in the workplace.

Considering the provisions of both laws, it is emphasized that employers are obliged to take all necessary measures to ensure occupational health and safety in the workplace. Furthermore, it is also determined by the Court of Cassation practices that this obligation of the employer is not limited to the measures subject to legal regulations and that the employer is obliged to take measures even in matters not regulated by law:

“Based on the obligation to take care of the employee and the need to protect human life as a superior value; not only the measures stipulated in the legislation, but also the measures to be taken in accordance with the stage reached by the scientific and technological development should be taken by the employer.” (Court of Cassation 10th Civil Chamber, 2019/5135 file number, 2020/5045 decision number, and 28.09.2020 dated)

As a result of all these evaluations, considering the effects of the Covid-19 epidemic at the social level concerning the masses; it is clear that the employer has a responsibility to protect the health of all employees. For this purpose, in the period when vaccination activities are not yet available, some measures such as taking the necessary protective measures to minimize the risks in common use areas in the workplace, providing masks and disinfectants, informing and supervising employees about observing hygiene and social distance rules must be taken and if possible switching to work from home. However, it is necessary to separately evaluate the obligations of employers and the limits of their authorities in terms of compulsory vaccination.

3. Can The Employment Contract Of An Employee Who Does Not Agree To Be Vaccinated Be Terminated?

It is seen that employers have certain rights and obligations within the scope of prevention of the Covid-19 epidemic within the scope of occupational health and safety measures. However, if vaccination activities start without being obliged by government policies, it is clear that even considering the obligation of the employer to ensure the health and safety of the employees, employer cannot directly force their employees to vaccinate. Because the obligation for vaccination can only be brought by a legal regulation. In the absence of such a legal regulation, it is not possible for the employer to oblige employees to vaccinate. On the other hand, on the basis of the safety of other employees and of course public health, it will be possible to take measures to encourage employees who do not vaccinate to be vaccinated and to take protective measures for other employees. In this respect, we consider that the employment contract of the employee who does not agree to be vaccinated cannot be terminated with just cause. For the principle of "termination as a last resort" accepted in the Labor Law should also be observed in this case.

The principle of termination as a last resort can be explained as in the most explicit way, that the employee does not have the opportunity to be employed even in worse conditions and therefore the employment contract terminated by the employer as a last resort. Thus, it may be possible to take protective and incentive measures for employees who do not want to be vaccinated, to apply rewards/premiums to employees who are vaccinated, or to apply unpaid leave until the epidemic is over for a compelling reason.

As a matter of fact, in the 25th article of the Labor Law numbered 4857, which regulates the employer's right to terminate immediately for justified reasons; it is foreseen that the employer can immediately terminate the employment contract in the following cases:

• If the employee has contracted a disease or suffered an injury owing to his/her own deliberate act, loose living or drunkenness, and as a result is absent for three successive days or for more than five working days in any month. (Art.25/1-a)
• If the Health Committee has determined that the suffering is incurable and incompatible with the performance of the employee’s duties (Art.25/1-b)

Nevertheless, considering the Court of Cassation's approach on this issue; It is accepted that this situation is not justified, but will be a valid reason for termination, even when the workplace is negatively affected as a result of the employee's frequent absenteeism due to his health condition and receiving long-term rest reports. Therefore, in terms of the implementation of Art.25 / 1, these issues should make the continuation of the employment contract intolerable. In this context, the effects of the Covid-19 epidemic in terms of Labor Law and the attitude of the Court of Cassation on this issue are not yet known. But considering the current legislation and judicial decisions; in cases where the Covid-19 vaccine is not compulsory by a legal regulation, it is thought that the employment contract of the worker who does not have the Covid-19 vaccine cannot be terminated for just cause.

Article 18 of the Labor Law titled “basing the termination on a valid reason” is arranged as follows; the employer, who terminates the contract of an employee engaged for an indefinite period, who is employed in an establishment with thirty or more workers and who meets a minimum seniority of six months, must depend on a valid reason for such termination connected with the qualification or behavior of the employee or based on the operational requirements of the establishment or service. In this respect, it is clear that even the employment contract of an employee with Covid-19 disease cannot be terminated due to continuous lack of performance. Regarding vaccination, protective and incentive measures should be taken before terminating the employment contract, considering the above-mentioned "termination as a last resort" principle by employers.

In addition; the termination prohibition extended until 17.01.2021 with the President's Decree No. 3135 published in the Official Gazette dated 27.10.2020 and numbered 31287 should be taken into account. It is likely that the distribution of vaccines to the rest of the society will be completed after the end of this termination prohibition period, considering that vaccination will initially be applied to risky groups in the community and priority groups such as healthcare professionals.  However, if there is a re-extension of the term regarding the termination prohibition, in any case, employees by the employers cannot be fired. If this period is not extended again, the principle of "termination as a last resort" should be applied.

4. Conclusion

In summary, in a situation where vaccination is not obligatory for citizens under any legal regulation, it is impossible for employers to make the vaccine compulsory for direct employees. However, considering the obligations of employers to ensure the health and safety of all employees, it may be possible to take protective measures and encouraging measures for vaccination. In addition, it should be taken into account that there will be no justified reasons for termination for an employee who does not agree to be vaccinated, and the principle of termination should be followed as a last resort. It seems possible to take measures such as giving unpaid leave until the epidemic is over for a compelling reason for employees who do not agree to be vaccinated.

At this point, in order to reduce the negative effects of the Covid-19 epidemic in business life, it is important to make legal regulations specific to this issue, taking into account the fundamental rights and freedoms of people within the scope of Labor Law in order to protect workplace health and safety. Thus, it is ensured that the loss of rights that may occur in the future is prevented and the health of persons is protected.