*Disclaimer: Given the speed at which new laws, regulations and policies have been implemented to control the COVID-19 pandemic, it is possible that the responses below will be impacted.*
Has vaccination been made mandatory in your jurisdiction?
No. Even though Turkey has a very active Covid-19 vaccination policy with the authorization granted to several different vaccines (i.e., CoronaVac and Pfizer-BioNTec) and the government encourages people to get vaccinated, the vaccination is still voluntary in Turkey.
Can an employer require compulsory vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?
No, an employer cannot require compulsory vaccination, since there is no compulsory Covid-19 vaccination in Turkey.
Can employers require the wearing of masks in the workplace?
Yes. The guidelines published by Ministry of Health and Ministry of Labour and Social Security require employees and external visitors to wear masks at the workplace. Therefore, employers can and should request employees to wear mask in the workplace. They should also remind employees to change masks regularly, especially when it is damp or dirty and to wash their hands before wearing and after taking off a mask, among other precautions against Covid-19.
Can employees refuse to be vaccinated? How does an employer need to balance its obligation to provide a safe work environment with an employee’s rights?
Yes, since the vaccination is on a voluntary basis, employers cannot require vaccination and employees have the right to refuse vaccination. In that case, an employer should seek alternative methods to provide a safe work environment for all vaccinated and unvaccinated employees. For instance, if the work performed does not require physical presence at the workplace, unvaccinated employees can be asked to work remotely.
If remote work is not possible for the specific work performed, an employer may need to seek alternative measures for health and safety. For instance, an employer may request a regular PCR negative test from unvaccinated employees (who do not have ongoing immunity against Covid-19) to enter the workplace, ask vaccinated and unvaccinated employees to work in separate areas, ask unvaccinated employees to use their holiday rights, apply for compensatory work, etc. While taking the relevant measures, employers should ensure that equal treatment principles under employment law are still respected and no discrimination is made against unvaccinated employees.
Without prejudice to the above, general health and safety precautions against Covid-19 should be taken and requirements published by the local authorities and the Ministries should be fulfilled at all times at the workplace regardless of whether employees are vaccinated.
In the event of a refusal, can an employee be dismissed for refusal to comply with the employer’s vaccination policy? Will the employee’s refusal constitute just cause for termination?
Since vaccination is not mandatory, refusing to be vaccinated against the Covid-19 does not constitute a valid or just legal ground for termination or other disciplinary action. Yet, employers should seek alternative methods and measures to ensure the health and safety of both vaccinated and unvaccinated employees as explained under the previous question. Termination should be treated as a last resort and should be applied only if other alternative methods cannot be applied to the employee’s case.
What benefits or accommodations do employers have to make for vaccinated employees?
An employer does not have any legal obligation to provide benefits for the vaccinated employees, while there is not a legal obstacle in encouraging/rewarding employees for vaccination either. However, employers should abide by the principles of equal treatment and prohibition of any kind of discrimination on the grounds of health (among others) under Law No. 6701 on Human Rights and Equality Institution and the Labour Law, while implementing such rewards for the vaccinated employees.
Can vaccinated employees refuse to work in the same vicinity as employees who are not vaccinated?
In principle, no. Employers are required to take all necessary measures to ensure a healthy and safe working environment in the workplace. Accordingly, employers will request a regular PCR negative test from unvaccinated employees (who do not have ongoing immunity against Covid-19) to enter the workplace or take other measures such as asking the unvaccinated employees to work remotely. In that case, employees cannot refuse to work in the same vicinity as unvaccinated employees.
On the other hand, if an employer fails to take necessary health and safety requirements in the workplace and if there is an imminent danger in the workplace, employees may use their rights under the Labour Law, including refusing to work in the same vicinity with employees ill with Covid-19 or termination of employment. Yet, this may need to be assessed further on the basis of the particular case.
In your country, are employers required to provide paid leave for employees to get vaccinated?
No, employers are not required to provide paid leave for employees to get vaccinated.
Contributors
Hergüner Bilgen Özeke
Kayra Üçer, kucer@herguner.av.tr
Melike Gençalp mgencalp@herguner.av.tr