The Corona Virus epidemic, which turned almost our daily lives upside down, has deeply affected the business world, as we all know. While some sectors stopped, serious production losses were experienced in some sectors, the way of working and business habits in many workplaces changed. Although it has become less destructive over time with the discovery and spread of the vaccine, it continues to spread around the world with the effect of its various variants. As a natural consequence of all these, while measures continue to be taken in almost every country to prevent the spread of the epidemic, the necessity of stricter rules for these measures also emerges in order not to interrupt the business life, which is the cornerstone of the economy.
For these reasons, two important circulars regarding collective activities and working life in our country, in order to prevent the spread of the epidemic and to ensure occupational health and safety, in the fight against the Covid-19 epidemic, in order to determine whether the employees carry any risk in terms of the Covid-19 epidemic in every workplace and to take the necessary precautions. published.
The PCR Obligation circular for some activities published by the Ministry of Internal Affairs and the circular issued by the TR Ministry of Labor and Social Security to submit a vaccination certificate or a negative PCR test result in workplaces are very important steps.
Considering the regulations in question, firstly, in the letter dated 20.08.2021 sent by the Ministry of Interior to the 81 Provincial Governorships and to the relevant Ministries for information; In order to minimize the risk posed by the epidemic in terms of public health and public order, it has been made obligatory to inform people who want to participate in activities such as concerts, cinemas, theaters and public transportation vehicles, and to report Covid-19 vaccine information and/or PCR test information with negative results.
Subsequently, in the letter dated 02.09.2021 sent by the Ministry of Labor and Social Security to the 81 Provincial Governorships for necessary information and to the relevant Ministries for information, within the scope of protective and preventive measures against health and safety risks that may be encountered in the workplaces; It has been stated that workers who are not vaccinated against Covid-19 may be required by the workplace/employer to have a PCR test mandatory once a week, and the test results will be recorded in order to take necessary actions.
Accordingly, the results are as follows;
- All employees are required to present their vaccination cards to the companies they work for as of 06.09.2021.
- Personnel who are not vaccinated or who have not completed the vaccine doses determined by the TR Ministry of Health are required to enter the workplace with this condition by submitting the negative PCR test results to the company management or human Resources departments once a week. Since workplace services are included in the concept of workplace, employers have to prevent personnel who do not meet these conditions from getting on the service vehicles and entering the factory.
- Personnel who do not have a vaccination card and do not present the results of the PCR test should be considered on unpaid leave during the period when they will not be taken to the factory, in accordance with the Occupational Health and Safety Law No. 6331, in accordance with the obligation to ensure the health and safety of their employees.
In short, in the light of these regulations, employers, special health status, etc. They should try to persuade the personnel who do not want to be vaccinated without any valid legal reason and who do not want to be vaccinated, and they should ask the personnel who do not want to be vaccinated to submit a PCR test with a negative result. They may not let their personnel who resist both of them start work, and may send them on unpaid leave.
Here, if the staff agrees to be on unpaid leave for a long time, disruption of the work will be inevitable, and what to do in such a case may pose a question mark. At this point, our opinion is that since long-term unpaid leave will cause disruption of the current work in the department of the personnel in question, there is no defense for the personnel who refuse to submit a vaccination card or PCR test with a negative result. The contract may be terminated for valid reason or just cause.
In practice, we often see that there are opposing views that sanctions cannot be applied to personnel who do not want to be vaccinated, since there is no legal regulation regarding the obligation to be vaccinated. However, it is necessary to evaluate the issue not only as a vaccination obligation, but also as a requirement to submit a vaccine or negative PCR test. For this reason, our opinion on this matter is that considering both public interest and public health and occupational health and safety issues, for the personnel who do not want to be vaccinated or who do not present a negative PCR test result, they should first consult with them and be persuaded, if necessary, from the workplace physicians or it is necessary to receive support from medical authorities in this regard, if there are personnel who resist, first of all, they should not be admitted to the workplace, then a warning should be given, and as a last point, the issue of termination of employment contract with valid reason should be evaluated.
However, the issue is extremely sensitive and even has the weight of termination for just cause. In other words, we are of the opinion that, although it may not sound good, the employment contract of the personnel who resist this regulation can be terminated even for just cause, in accordance with the employee health and safety legislation and in accordance with Article 25/II of the Labor Law. As a matter of fact, taking the most up-to-date measures necessary to prevent the spread of the virus in the workplace is the employer’s responsibility within the scope of occupational health and safety, but it is also the responsibility of the employees to strictly comply with these occupational health and safety measures. Among the obligations of the employees in the Labor Law, the issues not to endanger the health and safety of themselves and other employees are counted. The employer’s rightful termination of the employment contract of the personnel who endanger the safety of the job due to his own will and negligence by not complying with this obligation, and at the same time, the employee’s insistence on not performing the duties he is responsible for, even though he is reminded of it, is a justified reason for termination.
At that time, we had an article titled “Can the employer force an employee who does not want to be vaccinated to get vaccinated?”, which we wrote months ago on our website, stating that personnel who do not want to be vaccinated cannot be taken to the workplace, which received a lot of reaction at that time. Counter-articles and opinions have been written, but at the point reached today, we see that the circulars and regulations published today justify us.
Before we finish the subject, there is one last point we need to examine in terms of KVKK. Pursuant to article 6/3 of the Law on the Protection of Personal Data No. 6698, special quality personal data to be transmitted to companies must be processed, protected and destroyed at the end of the specified period by companies as data controllers in order to protect public health. However, this information may be transferred to public institutions and organizations such as the Ministry of Health and the Ministry of Labor, if necessary. At this point, it is seen that many companies have hesitations about the subject as follows; Does the aforementioned application constitute a violation of the KVKK legislation? In this way, if the employee does not have written consent, will we get a headache if we process the vaccination report card or PCR test results in this way? In our opinion, there is no need for these questions, because the regulation and the purpose of the regulation that emerged with the circulars of the relevant Ministries are quite clear.
However, a Decision dated 28/09/2021 and numbered 2021/980 was created by the Personal Data Protection Board in order to eliminate the hesitations in this direction and still some objections and hesitations, and a public announcement regarding the “Covid-19 Pcr test result and vaccine information applications” ” It was published on the official website of the institution and put an end to these discussions.
In the said decision; “….Due to the epidemic disease caused by Covid-19 threatens public security and public order, in order to prevent the spread of the disease, Covid-19 vaccine information and/or negative PCR test information is carried out by public institutions and organizations within the scope of the aforementioned article. There is no obstacle to the processing of personal data within the scope of the activities, therefore the personal data processing activities can be carried out within the scope of subparagraph (ç) of the first paragraph of Article 28 of the Law. It is considered that personal data processing activities that go beyond this purpose will be within the scope of the Law….” has been called.
As a result, although the information about the health status of individuals such as analysis, imaging, test, report, and vaccination status has the quality of personal health data according to Article 6 of the Law, although it is in the category of special personal data, it is not necessary to process this data within the scope of preventive and protective activities. It has been very clearly stated that there is no obstacle in front of it.
ERDAL KARDAS
Lawyer / Managing Partner of K&P Legal Law Firm
