Thanks to the COVID-19 vaccines, it seems that we will soon say goodbye to the virus, along with the masks and disinfectants that have become a part of our daily lives. While the vaccines bring good news, the number of question marks about the vaccines increase every day, and an important one for employers is whether employers can require their employees to get vaccinated.
The Turkish Minister of Health announced that the first set of vaccines is expected to arrive after December 11, 2020. Following this announcement, discussions began on the efficacy of the vaccines; who is eligible to receive the vaccine and when; and whether or not vaccines will be available gratis. However, it is still unclear when and how vaccination will be conducted in Turkey and whether the government will make vaccination mandatory for individuals, and if yes, for which groups.
Under Turkish laws, it is ostensibly legally possible to introduce a vaccination requirement. The Public Health Law already sets out vaccination requirements for certain diseases (e.g. smallpox). In this respect, given the severity of the COVID-19 outbreak, it may be possible for a new law or an administrative decision to be introduced for the COVID-19 vaccination, or for the existing laws to be amended to include the COVID-19 vaccination. The Ministry of Health also has the authority to take the necessary measures for public health, such as a potential vaccination requirement. However, the government announced that the vaccines are not mandatory at this stage.
Consequently, it does not seem possible at the present for employers to require their employees to get vaccinated - doing so might be considered as a violation of physical integrity and thus, of the respective individual's fundamental rights. Therefore, terminating the employment agreements of employees who refuse to get vaccinated would be risky. Then again, we believe that employers can make encouraging internal regulations for their employees to get vaccinated, such as introduce a voluntary vaccination program. In this case, we strongly recommend obtaining employees' handwritten and wet-signed consents before the employees are vaccinated.
Does the collection of the data on employees' vaccination statuses affect data privacy? Absolutely. Records of employees' vaccines constitute health data and the processing of health data is subject to strict requirements under the data privacy laws. As such, employers should pay attention to (i) notice requirement and applicable legal grounds (e.g. obtaining explicit consent, where necessary) for processing this type of data and (ii) relevant security measures they must take to protect the data.
The aspects of COVID-19 that employers focus on might have changed as the pandemic and the fight against the virus evolved, but COVID-19 will indisputably continue to be a trending topic for employers and their workforce for some time to come. Employers should continue to monitor all government authorities' announcements and any possible legislative changes with respect to vaccination and take the required actions.
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