In the face of the existence of the COVID-19 Coronavirus Pandemic, which has been influencing our country since March 2020, authorities intend to prevent the pandemic from increasing its effect again by making advisory and imperative regulations within the scope of controlled return to social and economic life.
In this context, the general letter dated September 2, 2021 sent to governors of 81 ptovinces, which includes PCR test that employers will request from their employees and informing their employees about the risks and precautions regarding COVID-19 pandemic. According to the given letter;
- Based on the employer’s obligation to inform all their employees about protective and preventive measures, employers should inform their employees who have not completed the COVID-19 vaccination process, in writing,
- If a definite diagnosis of COVID-19 is made to employees who have not completed their COVID-19 vaccination despite being informed in accordance with the labor and social security legislation, the possible consequences will be notified to these employees by the employer,
- It shall be decided by the workplace/employer that employees who are not vaccinated against COVID-19 may be required to have a PCR test once a week as of September 6, 2021, and the test results will be recorded at the workplace for necessary procedures.
B-) PCR Test Obligation and Its Application
In addition to aforementioned letter of the Ministry of Labor and Social Security dated September 2, 2021 made it mandatory for employees to have a PCR test once a week as of September 6, 2021, the “Precautions to be Taken at Schools in the COVID-19 Outbreak” guide published by the Ministry of National Education on August 24, 2021. Unvaccinated teachers and the other school staff, who are obligated to meet with students, are required to have PCR tests twice a week. In accordance with the special norm-general norm relationship, unvaccinated teachers and school employees working in private schools are also required to take PCR tests twice a week, despite the fact that they are subject to the Labor Law. According to the statement of the Ministry of Health, the PCR test of the employees will be done free of charge in public hospitals.
It is necessary to interpret the compulsory PCR test application in the 13th article of the Constitution titled “Restriction of Fundamental Rights and Freedoms” and the 17th article titled “Immunity, Material and Spiritual Existence of the Person”. According to Article 13 of the Constitution, “Fundamental rights and freedoms can only be limited by law” and again in Article 17, “Except for medical obligations and the cases written in the law, the bodily integrity of the person cannot be touched; It cannot be subjected to scientific and medical experiments without its consent.” When interpreting the given article, it is necessary not to adhere to the letter of the article and to interpret it in the spirit, so when both articles are considered together, it can be concluded that it is necessary to interpret the article narrowly within the framework of the rule of law, and that situations that violate the freedom and immunity of the person, such as the PCR test, can only be determined by law.
According to Article 17 of the Constitution, since the lawful intervention to bodily immunity can only be made in cases written in the law and in cases of medical necessity, it is regulated in Article 57 of the Umumi Hıfzıssıhha Kanunu (General Health Law) that the measures specified in Article 72 of the same law will be taken in cases of limited number of diseases. Considering the Article 57, it should be accepted that the COVID-19 Pandemic is not one of the diseases listed in the relevant article and since the legislator determines these diseases one by one, the principle of limited number (numerus clausus) will be valid. For this reason, considering the necessity of PCR testing as a precautionary measure due to the COVID-19 Pandemic, together with Article 13 and Article 17 of the Constitution, the fact that fundamental rights and freedoms can only be limited by law, and the necessity of PCR testing by the Ministry with a circular may result in illegal results within the framework of the usurpation of the authority of the legislator.
C-) Obligation of the Employer
Pursuant to Article 4 of the Occupational Health and Safety Law titled “General Obligations of the Employer” and Article 16 titled “Informing the Employees” and also as stated in the general letter sent by the Ministry of Labor and Social Security to the Governorships dated September 2, 2021, the employer is responsible for all health and safety of employees. shall be obliged to inform the employee about the measures and the consequences of non-compliance with these measures. At the same time, the employer must make this notification obligation in writing to employees who are not vaccinated against COVID-19.
From September 6, 2021, the employer will request a PCR test once a week from employees who are not vaccinated against COVID-19 and keep these test results in a record at the workplace.
If the employer wants to reflect the time spent by unvaccinated employees during working hours to have the PCR test to the employee by deducting wages, the employer may default on the debtor if the employer cuts his wages because the PCR test is not an arbitrary behavior in the current situation and the executive makes the PCR test compulsory for the employee.
The employer is required to inform the employee about the legal consequences that may occur in the event that an unvaccinated employee is diagnosed with COVID-19. Pursuant to the provision of Article 25-1/a of the Labor Law, it is regulated that if the employee is infected that will arise due to his own intention, if the absence due to this reason lasts more than 3 working days in a one after another or 5 working days in a month, the employer may be entitled to terminate the employment contract for just cause. When the relevant law article is considered on the basis of COVID-19 disease, it is necessary to consider the carrier effect of the people who are vaccinated and to evaluate whether the people who are vaccinated are also infected with COVID-19. For this reason, even if the employer does not have the right to terminate for just cause, it can be evaluated that the employer can apply for termination for a valid reason against employees who are not vaccinated and have COVID-19.
D-) Employee’s Obligation
In terms of labor and social security legislation and Turkish Code of Obligations, the employee has a duty of care to the employer’s work. It should be noted that the employment contracts of the employees who oppose the PCR test application cannot be protected by the legal order in accordance with the current legislation and may open the way for the employer to terminate with just cause. If the employees who are not vaccinated but prefer to apply the PCR test are positive for COVID-19 and their attendance to work is less than the periods specified in the law, the employment contract cannot be terminated according to right to termination for good cause but it could be ended according to termination for valid cause is possible.
The termination of employment contracts of employees who have been vaccinated and who are in a positive state of COVID-19, in accordance with their absence, shall not be subject to termination by the employer for justified or valid reason, as the employee fulfills his duty of due diligence.
As mentioned above, there are many gaps in the circular/letter of the Ministry of Labor and Social Security envisaging the application of PCR testing in workplaces in accordance with both the Constitution and the relevant legislation. Since the introduction of the PCR test application with a circular without using the relevant legal remedy causes the restriction of fundamental rights and freedoms without legal remedy, it is a matter of debate how the courts will decide in the case of rights violations that may arise. In this regard, it is considered that the enactment of codes rather than making the regulations made by the legislator with a general letter, circular or decree can prevent discussions in this direction.
Original text of the Ministry of Labor and Social Security can be accessed here.
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Emine Gizem YALÇINKAYA (Apprentice Attorney)
Abdullah Barış UYGUN (Apprentice Attorney)
Uçar Law & Consultancy Office