I know asking this question and stepping aside would be like dropping the bomb and watching the rumble. If we sit down and discuss, this is a topic that might last for hours. Although it is easy for scientists to argue, if lawyers argue, we may not even be able to reach a clear conclusion. Let’s share our views with reasons and leave the discussion for later.
Despite the pandemic period we are living in and all the suffering, the state’s mobilization of its resources, and the Ministry of Health broadcasting statistics on television every day, there are still a substantial number of anti-vaccine opponents. In this issue, where there is no clear legal regulation, we are not talking about forcing people to get vaccinated at home or on the street, that is a completely different issue.
You have a business and employees and if one or more of them says I do not want to be vaccinated despite the current situation that poses a serious danger to your manager or the workplace or business you own, can you, as the employer or employer’s representative, compel the employee to be vaccinated? Should you continue to work helplessly with that person? Could this be a reason for termination of employment for the employee or the employer?
According to sources, the official history of vaccination dates back to 1796. Vaccination first started with experiments against cowpox. It is such an important issue that Canadian writer Andrew Nikiforuk has described the role of epidemics in the formation of world history in great detail in his book “The Fourth Horseman of the Apocalypse”, in which he describes the history of epidemics and infectious diseases. In a very short time, there were epidemics that killed millions of people, these diseases stopped armies that were thought to be invincible, collapsed empires, radically changed the social structure, and shaped our social relations and behaviors. As a matter of fact, the whole world is faced with a similar picture today.
According to experts and the reports of the World Health Organization, no vaccine is considered 100% effective, but it is accepted that it is possible to reduce vaccine-preventable diseases when applied widely in the community. Although vaccines, which are products that create immunity against diseases, are one of the most effective weapons of public health in improving health and reducing the burden of infectious diseases, it is seen that a vaccine debate has been continuing since the first day of its release. According to studies, although the majority prefer to be vaccinated, a significant number of people still reject the vaccine, including those who are concerned about the safety of the vaccines, those who do not feel the need because they think it is not at risk, and those who object on religious grounds.
With the spread of Covid-19 vaccination in our country, the decrease in the age groups to be vaccinated, and the right of all insured employees to be vaccinated, many employers want all their employees to have the Covid-19 vaccine. In this case, the question of whether it is necessary to make a covid-19 vaccine in the workplace comes to mind.
Considering the legal regulations, there is no legal regulation that obliges everyone to be vaccinated due to the epidemic in our country. In cases where the legal regulations are not sufficient, the judicial authorities fill this gap with case law.
In Continental European Law, which is subject to Turkey, where laws constitute the main source of law, courts are obliged to make decisions in accordance with the law. Even in cases where there is no provision in the law, the judge has to make a judgment within the scope of his duty and resolve the dispute. For this reason, the judge makes his decision by filling the gaps created by the lawmaker knowingly or by negligence. In short, in cases where there is no legal regulation, this gap can be filled by making use of court case law. In that case, since there is no legal regulation, it may be guided to examine the judicial decisions regarding compulsory vaccination in the past, so let’s take a look at them now.
The approach of the Supreme Court on the issue:
In the past, a similar discussion about vaccination has taken place over whether it is possible to forcefully vaccinate children without parental consent. In a dispute regarding this, the Supreme Court 19. Of the Penal Chamber noted in its decision dated 05.11.2015 and numbered 2015/16 E. and 2015/6675 K., which was given upon the objection of a family who did not consent to the compulsory vaccination of their children, that the vaccine is one of the mandatory vaccinations in accordance with the “extended immunity program” determined by the Ministry of Health, and decided that the consent of the parents would not be sought because it was in the “best interests of the child”.
In the aforementioned decision of the Supreme Court 19. of the Penal Chamber, “If the parents do not consent to the vaccination, it is clearly contrary to the best interests of the child, in this case, the consent of the parents will not be sought, in the concrete case, the parents oppose the vaccination of their children without showing a justified reason and evidence, and the desired vaccination would be against the best interests of the child. and understanding that vaccination is mandatory for the future individual health of the child, as well as for public health, as there are no cases. On the same grounds, if the families do not give their consent for their child not to be vaccinated without any justified reason, there will be no legal consequences for this attitude and the consent of the family will not be sought because it is clearly contrary to the best interests of the child.
The approach of the Constitutional Court on the issue:
A similar issue was also brought to the Constitutional Court in 2015. In the decision of the Constitutional Court on the case of Halime Sare Aysal dated 11.11.2015, it was emphasized that it is unconstitutional to vaccinate a child through a health measure without the consent of the parent, without any legal element. In the relevant decision, on the grounds that there is no foreseeable legal regulation regarding compulsory vaccination, Article 17 of the Constitution is violated. It has been ruled that the right to protect and develop the material and moral assets guaranteed in the article has been violated and it has been pointed out that a legal regulation should be made in this regard.
Although nearly six years have passed since this decision of the Constitutional Court, no new legal regulation has been made in this regard. As it can be seen, there is no legal regulation and there is a serious difference of opinion among the high courts of our country regarding compulsory vaccination.
The approach of the European Court of Human Rights:
The case law of the ECtHR on this issue considers compulsory vaccination to combat an epidemic as a legitimate aim of protecting public health.
The European Court of Human Rights decided on a pre-Pandemic case on 08.04.2021 and made a precedent decision with a majority of sixteen on the obligatory childhood vaccinations and ruled that such a policy under certain conditions does not constitute a violation of the European Convention on Human Rights. This decision of the ECtHR is extremely important because it has made a decision on compulsory vaccination for the first time and has revealed its approach to this issue. In its decision, where it decided on five separate applications from Czech citizens together, the ECtHR found the allegations regarding the violation of the right to freedom of thought, religion, and conscience and the right to education directly unacceptable. In summary, the ECtHR has decided that mandatory vaccinations are legal and may be necessary for democratic societies.
The decisions of the ECtHR are extremely important, because Article 46 of the European Convention on Human Rights, to which Turkey is a party, is very important. According to the article, all states party to the Convention are obliged to comply with the decisions of the European Court of Human Rights (ECHR).
What can an employer who is in a hurry to ensure occupational health and safety in such a complicated situation and with so many details on the subject do?
As we mentioned above, the absence of a legal regulation on compulsory vaccination in our country, differences in court decisions, and different opinions and comments in society, both on social media and on television, make it difficult for employers to make a decision to implement compulsory vaccination in order to ensure occupational health and safety at work. There is no doubt that in order to answer such a controversial question, it is necessary to evaluate and comment on the current situation in detail.
In accordance with Article 4 of Occupational Health and Safety Law No. 6331, the obligations regarding occupational health and safety in a workplace do not only impose responsibilities on the employer but also on the employees have responsibilities. The employer is obliged to ensure the occupational health and safety of the employees. In this framework, besides many obligations, it is also its duty to adopt health and safety measures to changing conditions.
Article 19 of the same law is in accordance with the article, employees are obliged not to endanger the health and safety of themselves and other employees who are affected by their actions or the work they do, in line with the training they receive on occupational health and safety and the instructions of the employer on this subject. We have noted the Court’s decisions above, now let’s note this aside and continue.
Looking at the research of scientists, articles, and explanations on the subject, it has been revealed by many scientific studies that the vaccine has a very important place in the fight against the epidemic, has important benefits in preventing the catching and transmission of Covid-19, and at least prevents the disease from being severely affected. The World Health Organization, the Ministry of Health of the Republic of Turkey, and the Scientific Committee also express the same opinion and recommend that everyone be vaccinated to combat the epidemic.
In this case, it is clear that an employee who refuses to be vaccinated will pose a significant danger to occupational health and safety. We should also note the provision “The worker endangers the safety of the job because of his own will or negligence” in Article 25/II-ı of the Labor Law. Because, according to the Supreme Court decisions, if the safety of the job is endangered by the behavior of the employee, it is accepted that the termination is based on a just cause. In this case, considering that employers are obliged to ensure occupational health and safety at work, and take the necessary measures to ensure that all their employees work in a healthy and safe environment, it is possible to require vaccination of employees who continue to resist without a medical report or legally acceptable justification, and We are of the opinion that it is very possible for those who are not vaccinated to not be employed.
Of course, there will be opinions that such an application cannot be made on the grounds that there is no legal regulation on this issue. However, considering the European Court of Human Rights and the Supreme Court decision, which considers compulsory vaccination to combat an epidemic as a legitimate aim for the protection of public health, the aforementioned provision of the Labor Law and the provisions of the law numbered 6331 are taken into account, they are obliged not to endanger the health and safety of other employees. It is not possible to accept employees’ resistance to vaccination as a justified attitude.
Of course, the best solution is to apply the method of training and persuasion, to raise awareness by getting the support of workplace physicians, to make the necessary explanations, and to ensure that all employees are vaccinated. Awareness of all employees about vaccination and their persuasion to be vaccinated will also be very valuable in terms of social awareness.
Erdal Kardas
Lawyer / K&P LEGAL LAW OFFICE
