The COVID-19 virus, which has turned people's health and lives upside down both in the world and our country, has also directly affected our work lives. So that; For the first time in our country, new concepts and practices such as "prohibition of dismissal", “cash wage support”, “unpaid leave”, "remote work", ”curfew and lockdown”, "closure or restriction of activities of some businesses" have been added to our work life.
New legal regulations regarding these concepts and practices have brought new responsibilities to both employers and employees, along with presidential decisions and decrees, and brand new legal regulations in our work life.
Today, as a way to get rid of the COVID-19 virus in our country, besides the "mask, social distance, and hygiene" rules, "vaccine" has entered our lives as a virus protection measure. According to the scientific researches, the vaccination is the most effective precaution in the battle against Covid-19 pandemic.
CURRENT PROBLEM; THE RIGHT TO BE VACCINATED or THE RIGHT TO REFUSE BEING VACCINATED
In Turkey, everyone over the age of 12 has the right to be vaccinated, and the state gives the vaccine free of charge to anyone who wants to use their right to be vaccinated.
People who are against vaccination argue that vaccination is not beneficial, that there are also rights to body integrity as human rights, and that there is no legal regulation that obliges to be vaccinated. Besides, people who support vaccination argued that being vaccinated is an important manner in preventing and defeating the virus, that everyone should be vaccinated for public health, and even though there is no direct legal regulation on this issue, that the existing legal regulations are applied by analogy and bring responsibilities to the citizens.
It is very difficult to say that there is a legal regulation that makes the vaccine mandatory today.
LEGISLATION AND THEIR EVALUATIONS
TURKISH CONSTITUTION ARTICLE: 20/3
(ADDED SECTION, OFFICIAL GAZETTE DATE: 13.05.2010 OFFICIAL GAZETTE NO: 27580 LAW NO: 5982/2)
Everyone has the right to request the protection of his/her personal data. This right includes being informed of, having access to and requesting the correction and deletion of his/her personal data, and to be informed whether these are used inconsistency with envisaged objectives. Personal data can be processed only in cases envisaged by law or by the person’s explicit consent. The principles and procedures regarding the protection of personal data shall be laid down in law.
As it can be understood from the text of the article of the Constitution, everyone has the right to request the protection of their personal data. Once again, as it can be understood from the text of the article, it is regulated that personal data can only be processed with the explicit consent of the person or in cases stipulated in the law.
Currently, there is no legal regulation regarding the processing of a person's "Covid-19 vaccine information".
REGULATION IN THE LABOR LAW NO 4857
ARTICLE 75. – The employer shall arrange a personnel file for each employee working in his establishment. In addition to the information about the employee’s identity, the employer is obliged to keep all the documents and records which he has to arrange in accordance with this Act and other legislation and to show them to authorized persons and authorities when requested.
The employer is under the obligation to use the information he has obtained about the employee in congruence with the principles of honesty and law and not to disclose the information for which the employee has a justifiable interest in keeping as a secret.
As it can be understood from the regulation of the article, the employer has to keep the information and documents obtained from the employee in addition to the identity information of the employee in the personnel file. This obligation also brings the obligation not to disclose the obtained information of the employee. Therefore, the employer cannot record or disclose the employee's health information without the employee's consent.
THE LAW OF OCCUPATIONAL HEALTH and SAFETY NO. 6331
ARTICLE 15 - (1) The employer;
a) Ensures that employees are subject to health surveillance considering the health and safety risks they will be exposed to in the workplace.
b) Has to ensure that the health examinations of the employees are carried out in the following cases:
(2) Those who will work in hazardous and very dangerous jobs (VARIED PHRASE OG DATE: 11.09.2014 OG NO: 29116 DUPLICATED LAW NO: 6552/17) (CODE1) cannot be taken on without a medical report stating that they are suitable for the job they will work on.
(5) Health information is kept confidential in order to protect the private life and reputation of the employee who has been examined medically.
As it can be understood from the regulation of the Article, the employer has the obligation to protect the employees from the health and safety risks that the employees may be exposed to in the workplace. Likewise, it is stipulated that the employer, who is obliged to have the health examinations of the employees, has the right to request the observance of the measures taken, right to demand that the employee protect his/her own health and that the employee be cautious in terms of the health and safety of other employees.
According to our opinion, the Employer may ask the Employee to get vaccinated due to protecting effect of Covid-19 vaccine.
REGULATION IN THE TURKISH LAW OF OBLIGATIONS NO 6098
ARTICLE 419 - The employer can use the personal data of the employee only to the extent that it is related to the employee's inclination to work or is compulsory for the performance of the service contract.
Special law provisions are reserved.
As it can be understood from the text of the Article, It should be considered that it is a right for the employer to know whether the employee who will work or have a business relationship with many other employees in the business environment, has a contagious disease or whether the employee has had the vaccine. However, the employer can only request the data about the employee's work inclination and compulsory information for the performance of the service contract. In this sense, there is no regulation regarding the request for vaccination information.
Moreover; Since the employer has the obligation to protect the health of the employees in the Occupational Health and Safety Law No. 6331, if the employer knows the information about the employee's health, the necessary security measures will be taken.
THE LAW ON PROTECTION OF PERSONAL DATA NO.6698
ARTICLE 6 – “(1) Data relating to race, ethnic origin, political opinions, philosophical beliefs, religion, sect or other beliefs, appearance and dressing, membership of an association, foundation or trade-union, health, sexual life, criminal conviction, and security measures, and biometrics and genetics are special categories of personal data.
(2) It is prohibited to process special categories of personal data without obtaining the explicit consent of the data subject.
(3) Personal data indicated in paragraph 1, other than personal data relating to health and sexual life, may be processed without obtaining the explicit consent of the data subject if the processing is permitted by any law. Personal data relating to health and sexual life may only be processed without obtaining the explicit consent of the data subject for purposes of protection of public health, operation of preventive medicine, medical diagnosis, treatment, and care services, planning and management of health services and financing by persons under the obligation of secrecy or authorized institutions and organizations.
(4) It is additionally required to take the adequate measures designated by the Board when special categories of personal data are processed.
As it can be clearly seen from this provision of the law, health data is considered as sensitive personal data, and the said data can only be processed with the explicit consent of the relevant person or can be processed by persons or authorized institutions and organizations that are under the obligation of secrecy to protect public health, preventive medicine, medical diagnosis, execution and management of treatment and care services, without the explicit consent of the relevant person.
Vaccine-related data of individuals are also health data. For this reason, the processing of these data will only be possible under the conditions specified in the law.
In this respect, to process the vaccination information in question, either the explicit consent of the relevant person must be obtained or the workplace doctor must have the purpose of protecting health in the workplace.
ASSESSMENT OF THE CURRENT LEGAL STATUS
It is clear that there is no clarity and common practice in the legal regulations that are examined in detail above. Under these circumstances, it is tried to conclude with interpretations and evaluations.
While the explicit consent of the employee is required in the Law on the Protection of Personal Data for the employer to process the vaccination card in the personnel file, it is evaluated in Article 419 of the Turkish Code of Obligations that it is allowed the information of the employees to be processed to the personnel files.
While the Law of Occupational Health And Safety numbered 6331 imposes obligations on both the employer and the employee, it is seen that there is a conflict within the legal regulations.
Although the Law on the Protection of Personal Data, the Labor Law, and the Occupational Health and Safety Law are lex specialis, the situation in which they conflict with the Turkish Code of Obligations, which is legi generali, was explained above. Since there is no regulation in any of the special laws stating that the provisions of the special law will be valid in case of conflict with other laws, the Turkish Code of Obligations, which is the general Law, comes forward in terms of subject, and the opinion has reached that the employer has the right to request vaccination information of the employee in accordance with Article 419 of the law.
WHAT SHOULD THE EMPLOYER DO AGAINST EMPLOYER WHO DOES NOT GET THE COVID-19 VACCINE?
First of all, we can say that it should not be ignored that the obligation of "observing the objective good faith rules in exercising everyone's rights" in Article 2 of the Turkish Civil Code, which is our basic law, comes forward in our case. It should be considered that 2-3 people persistently not having vaccinated will have a negative psychological impact on other employees as well. In that case, it may even be possible to think that the employee who has not been vaccinated abuses his/her "right not to be vaccinated". The employer's first attempt to encourage the unvaccinated employee to get vaccinated will be a positive behavior.
If the employee insists on not being vaccinated, it should not be considered illegal for the employer to request a PCR test every two days or once a week. Considering the employer's obligation to protect both his own health and the health of other employees, the employer has the right to “terminate with a valid reason” of the employment contract with the employee who resists getting vaccinated due to behaviors of the employer or needs of the workplace (if the employees not getting vaccinated are the majority in the workplace). However, there is not yet any Supreme Court decision or established practice on this matter.