BY OZGUR GUNER, EYLUL BENGISU GUMUS, HANDE SOLAK, BURAK BATI
The announcement of the Ministry of Labor and Social Security on Covid-19 measures at workplaces was published on the website of the Ministry on September 3, 2021. In the announcement, employers are required to inform their employees who are not fully vaccinated with Covid-19 vaccine, in writing, of the possible consequences of a positive diagnosis of Covid-19 of non-vaccinated employees in terms of work and social security legislation.
According to the announcement, as of September 6 employers may require their employees who are not vaccinated against Covid-19 to receive a PCR test once a week, and that the test results will be kept on file at the workplace in order to take necessary actions.
Some have noted that the announcement leaves many questions unanswered. We will attempt to answer some of those key questions here.
1-WHO WILL COVER THE COST OF PCR TESTING?
It is not specified in the announcement whether the cost of the PCR test will be covered by the employer or the employee.
Some may assume the cost of PCR testing should be covered by the employer within the framework of the obligation to take OHS (Occupational Health and Safety) measures. We do not necessarily agree. Since the PCR test is not required for vaccinated employees, and vaccinations are available for free to all employees, we believe that it will not be possible to burden the employer with PCR test costs at this stage. In practice, the PCR test costs will not be covered except for a small number of employers.
There are two choices for the employee: (i) get vaccinated, (ii) do not get vaccinated but get a PCR test. It is clear that a PCR test will not be required if the employee is vaccinated. If a decision is made by the employer to require a PCR test, the choice of the unvaccinated employee about whether or not to get a PCR test will be important. If the employee prefers not to get vaccinated – i.e. to not receive a free vaccine- he or she will also be deemed to have chosen to get a PCR test within the scope of the MoLSS (Ministry of Labor and Social Security) announcement. Therefore, we believe that PCR testing costs will have to be covered by the employee.
On the other hand, there is also the opinion that the ministry letter requires the employer to take an operational decision as to whether employees will get a PCR test. Thus, the employer is deciding to have the testing done. According to this opinion, requiring a PCR test is a precaution taken by the employer as an OHS measure within the scope of the Occupational Health and Safety Law No. 6331, and thus the PCR test costs must be covered by the employer.
2- WHAT ARE THE CONSEQUENCES IN TERMS OF THE LABOR AND SOCIAL SECURITY LEGISLATION SPECIFIED IN THE ANNOUNCEMENT IF THE EMPLOYEE WHO CHOOSES NOT TO GET VACCINATED IS INFECTED WITH COVID-19?
Despite the fact that the issue has been on the agenda of our country for a long time, we think that the answer to this question will be derived through judicial means in the future, in light of the lack of legislative regulation by the Grand National Assembly of Turkey.
We believe the correct way to introduce the PCR test obligation is through legislation instead of an announcement, and that unless a law is introduced, employees will have to comply with this regulation. The lack of a legal regulation is seen as an important shortcoming.
Consequences that may arise in case an employee suffers from Covid-19 due to a lack of vaccination include: i) In terms of Social Security legislation, the possibility of SSI (Social Security Institution) not paying the temporary incapacity benefit to the employee for the period of the employee’s sick leave
(ii) In terms of Individual Labor Law legislation, whether a disciplinary sanction such as a warning, monetary fine, termination, etc. can be applied to the employee.
3-WHICH DEPARTMENT OF THE EMPLOYER CAN COLLECT/STORE VACCINE INFORMATION AND PCR TEST RESULTS IN THE CONTEXT OF THE LAW ON THE PROTECTION OF PERSONAL DATA (LPPD)?
Provided that the obligation to inform is fulfilled, vaccination information and PCR test results should continue to be collected and stored by the workplace doctor at this stage, and the information should be shared with the relevant departments of the employer by the workplace doctor.
If express written consent is obtained from the employee, the employer’s Human Resources department may also collect and store this information.
Since there is no clear regulation on this matter, employers should be aware that they risk criminal sanction as per the LPPD if information is collected and stored directly by a department other than the workplace doctor without the employee’s explicit consent. There is also a risk that the employment contract may be terminated by the employee for rightful cause due to the sharing of health data without consent.
4-CAN SANCTIONS BE IMPOSED ON AN EMPLOYEE WHO ARRIVES LATE TO WORK BECAUSE OF A PCR TEST?
In our opinion, getting a PCR test should not be an excuse for arriving late to work. Employees must have their tests done outside of working hours. Employees must be notified of this obligation and its possible consequences in writing. The usual warning and termination procedures may be applied to employees who regularly arrive to work late with the excuse that they had to get a PCR test.
There is also a contrary opinion in this case, however. Its logic states that if it is the employer who decides whether employees must take a PCR test or not, the time spent in the health institution or during transportation to the health institution to take the test must be counted as work time, and if an employee is late arriving to work due to the test, no sanction should be applied.
5-IS TAKING THE PCR TEST OBLIGATORY FOR EMPLOYEES WHO HAVE RECEIVED THE FIRST DOSE OF VACCINE BUT HAVE NOT YET RECEIVED THE SECOND DOSE ̜BECAUSE THE APPOINTMENT DATE HAS NOT COME OR FOR ANY OTHER REASON?
There is no clear indication on this issue in the announcement. Considering that one of the goals of the announcement is to convince employees to get vaccinated, it seems logical to not force the PCR test on employees who have made appointments for the second dose of vaccine or are waiting for the system to give them an appointment. However, considering that the efficacy of a single dose of vaccine is low according to studies, it is reasonable for the employer to require both doses of vaccine. Thus, we believe that it would be appropriate for the workplace doctor to follow up with employees to ensure they have met their appointment times and received the second dose. If not, PCR testing should be required at that point.
6-CAN AN EMPLOYEE WHO DOES NOT SUBMIT PCR TESTING BE TERMINATED?
At this stage, PCR testing is merely requested from employees who are not vaccinated. Thus, the termination of an employee who does not submit to testing is risky. Employers should conduct a risk assessment regarding the possible consequences of termination proceedings, taking the number of employees who have not been vaccinated and who refrain from submitting to PCR testing into account. As a result of the risk assessment, termination procedures may be preferred as a means of providing deterrence, weighed against the risk of reinstatement lawsuits, severance payments and payments in lieu of notice, lawsuits demanding discrimination compensation within the scope of violation of the principle of equality, and possible administrative fines due to LPPD violations.
6.I. CAN AN EMPLOYEE BE CONSIDERED ABSENT WITHOUT LEAVE AFTER NOT BEING ADMITTED TO THE WORKPLACE BECAUSE OF HIS OR HER UNVACCINATED STATUS AND REFUSAL TO TAKE THE PCR TEST AND IS THIS A RIGHTFUL CAUSE FOR TERMINATION?
We believe this strategy is in itself extreme and if this method is used, even if it leads to the conditions for absence without leave specified in paragraph 25/II-g of the Labor Code being met, then claiming rightful cause for termination would be a severe sanction.
6.II. CAN THE EMPLOYMENT CONTRACT BE TERMINATED DUE TO RIGHTFUL CAUSE ON THE GROUNDS THAT THE EMPLOYEE, BY REFUSING VACCINATION AND PCR TESTING, IS ENDANGERING THE WORKPLACE AND VIOLATING OHS RULES?
In terms of Covid-19 vaccines, discussions continue on whether these vaccines provide full protection and what side effects they will have. Although the World Health Organization and the Ministry of Health encourage employees to get vaccinated, there is still no legal regulation in our country that obliges vaccination, and there is no definitive evidence that workers who are not vaccinated endanger occupational health and safety because they do not have PCR tests. Therefore, we believe that in case of a possible dispute, termination with rightful cause on the grounds of non-compliance with the OHS rules will also be a severe sanction.
6.III. CAN THE EMPLOYMENT CONTRACT BE TERMINATED WITH VALID CAUSE ON THE GROUNDS THAT THE EMPLOYEE’S BEHAVIOR CREATES A NEGATIVE WORKPLACE ENVIRONMENT?
We believe the tensions unvaccinated people who refuse PCR testing will create for vaccinated people in the workplace does touch on an employer’s responsibility to protect the health and safety of other employees and that termination with valid cause would be a reasonable choice. The fact that the behavior of the employee leads to negativities in the workplace is also a cause for termination for the employer with a valid cause.
Nonetheless, because there is no law stating that vaccination is required and employees who are not vaccinated or who do not have a PCR test can be dismissed, there is still a risk of lawsuits to the employer.
If the employee is not vaccinated and still refusing to submit to PCR testing, the employer should take a statement from the employee as to why he or she is making this choice. The employee should also be warned, taking the principle of ultima ratio applied in terminations for valid causes into account. Initial measures should be taken prior to termination, for instance shifting non-vaccinated employees into isolated areas. All avenues should be assessed for the continuation of the employment contract before termination.