Employers’ Options for Employees Who Refuse a Covid-19 Vaccination

As a result of the increase in the speed of Covid-19 vaccination across the country, especially following the latest statement made by the Ministry of Health on 14 June 2021 regarding that all employees registered with the Social Security Institution (SSI) were granted priority in terms of vaccination, many employers are considering if they can require employees to get vaccinated, and what they can do if employees refuse so. Thus, the spread of COVID-19 vaccines has created another crucial legal issue regarding the right to refuse to be vaccinated. So, what options do employers have in such situations where the employees refuse to get vaccinated?

First of all, according to the statements made by the Ministry of Health, the COVID-19 vaccine is not mandatory for citizens. For this reason, all citizens including all employees have the right to choose whether or not to be vaccinated against COVID-19, and in our opinion, as a rule, it is not possible for employers to force their employees to get vaccinated since it may be considered as an infringement of the fundamental right of individuals provided in Article 17/2 of the Turkish Constitution.

When we consider the obligation of vaccination at a constitutional level, we believe that while the government/law does not impose such an obligation, employers imposing this obligation for their employees will indeed violate the Article 17/2 of the Constitution stipulating as follows:

“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.”

Even if the Constitution mentions the exception of “medical necessity”, we are of the view that such an obligation can only be brought by a legal regulation. In the absence of such a legal regulation clearly defining the scope and consequences of this obligation, it shall be impossible for the employer to impose a vaccination obligation on their employees. Since there is a fundamental right and freedom in question, the limitation of this fundamental right and freedom should only be realized by law within the framework of constitutional principles such as proportionality, convenience and necessity.

In this respect, we believe that the employment contract of an employee who refuses to get vaccinated cannot be terminated for just cause (in Turkish, “haklı nedenle fesih”), since the principle of “termination as a last resort”, which is accepted in labor law, should also be observed in this case. Therefore, in our opinion, dismissal of employees who do not want to get vaccinated will pose a high risk for the employer. In addition to the risk of invalidation of the termination, allegations of discrimination may also be claimed by the employees in a possible dispute. Especially within the period when the termination prohibition is valid, that is, until 30 June 2021 (save for the further decisions of extension to be adopted by the relevant ministry), since the employers are prohibited from terminating the employment contract of their employees except for terminations arising from the employee’s behavior contrary to the rules of ethics and goodwill and similar cases in section (II) of the first paragraph of Article 25 of the Labor Code, terminating the employment contract of the employee based on the fact that he/she refused to get vaccinated will most probably not be considered within the scope of the exception of Article 25/2, thus, may put the employer in a difficult position in a possible labor dispute.

Another question that may arise is “what methods can employers implement instead of termination if employees do not want to get vaccinated?” Considering the cons of termination based on the refusal of vaccination by the employee, we would kindly recommend that employers to consider alternative methods instead of termination of employment contracts such as; ensuring that the employee adheres to all COVID-19 measures (e.g. social distancing and mask requirement) in the work place as well as taking all necessary precautions in terms of occupational health and safety, implementing remote work in compliance with the provisions of “Remote Working Regulation” published in the Official Gazette dated 10 March 2021 and numbered 31419 and transferring employees to other positions suitable for them by complying with the rules of change in working conditions.

Moreover, as for the employers’ option to send their employees who refuses to get vaccinated on paid/unpaid leave, while we are of the view that the employers may send the employee to annual paid leave at any time, the employers’ right to send their employees to unpaid leave can be exercised only until 30 June 2021. However, even until this date, we believe that the reason of not accepting to be vaccinated may not be considered as a justified cause to benefit from unpaid leave and forcing the employee to unpaid leave with the reason of not being vaccinated can be considered by the labor courts as a way of mobbing applied by the employer to the employee.

Indeed, the best approach will be the one where an employer encourages employees to get the vaccination (without causing a pressure on the employees) and provides them with access to information and support.

Our Law Firm remains at your disposal for any further clarifications you may need.