As the COVID-19 pandemic continues to spread around the world, we have been witnessing the effects of the pandemic on various areas of law such as real estate law, commercial law, employment law, etc. The launch of COVID-19 vaccines has brought another significant legal issue regarding the right to refuse to be vaccinated. Under this article, the topic of vaccination will be evaluated from the aspect of whether such refusal could allow the employer to terminate employment of the ones refusing vaccination in accordance with their obligation to preserve the health of other employees in the workplace, as per Occupational Health and Safety Law No. 6331.
In a nutshell, the Occupational Health and Safety Law obligates employers to take all the measures necessary for the safety and health of their employees. This includes providing an environment where employees can work without facing the risk of exposure to a disease.
According to Article 4 of Occupational Health and Safety Law "the employer shall have a duty to ensure the safety and health of workers in every aspect related to the work. In this respect, the employer shall;
a) 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 by taking account of changing circumstances, and aim to improve existing situations."
In cases where there is an employee refusing to be vaccinated, one can argue that allowing this employee to remain in the workplace would be a breach of the employer's above obligations. There is however a constitutional aspect to this as well. Indeed, the right to personal integrity, corporeal and spiritual existence of the individual is a constitutionally protected right, and stipulated as such under Article 17 of Constitution of the Republic of Turkey:
"Everyone has the right to life and the right to protect and improve his/her corporeal and spiritual existence. The corporeal integrity of an 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. No one shall be subjected to torture or mal-treatment; no one shall be subjected to penalties or treatment incompatible with human dignity..."
Given that the relevant law, i.e., Public Health Law No. 1593, does not oblige the citizens to have COVID-19 vaccination, forcing the employees to get the vaccine, and terminating employment in case of refusal would be a clear breach of that constitutional right. Surely the employers can still make an argument based on their obligation for the protection of health at the workplace, and more specifically, the health of other employees; but when there is a constitutional right on the other hand, allowing the employees to face consequences (i.e., dismissal) if they were to refuse a vaccination that even the law itself does not deem as obligatory, might be seen as going against the innate approach of labor courts to protect employees. However, even under these circumstances, employers' obligation regarding occupational health and safety will continue, and employers would be held liable to provide a safe working environment to those who refuse to work physically at the workplace due to valid reasons (e.g. presence of employees refusing to be vaccinated). Otherwise, such employees' right to live would be violated. We have yet to see how the labor courts would interpret the situation if this ever were to be a dispute.
This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in March 2021. A link to the full Legal Insight Quarterly may be found here
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