COVID-19 vaccination and testing in Turkey - employment law perspective

  1. Vaccination
    1. 1. What options does the employer have to encourage employees to be vaccinated? Can the employer provide a financial incentive to employees? 
    2. 2. Is the employer obliged to offer vaccines (or can it voluntarily offer vaccines) to employees? Is the employer obliged to support (or can it voluntarily support) third parties or governmental institutions providing vaccines to employees?
    3. 3. Can the employer verify which of its employees have been vaccinated? If yes, can the employer make record of these vaccinated employees?
    4. 4. Does an employee have a duty to inform the employer whether or not he or she has been vaccinated?
    5. 5. Can the employer oblige employees to be vaccinated as a condition of employment? If yes, specify under what conditions. Include in your answer to what extent the nature of an employee's work activities or position is pertinent (e.g. does it matter whether the employee can work remotely?).
    6. 6. Can employees refuse to be vaccinated? If so, is the employee obliged to give the reasons for refusing? 
    7. 7. Can the employer refuse to admit employees into the workplace if they are not vaccinated (i.e. is it possible to make two categories of employees)?
    8. 8. Can the employer instruct non-vaccinated employees to perform different duties? If so, under which circumstances?
    9. 9. How should international business travel be managed? Include any local requirements where proof of vaccination is necessary to enter your jurisdiction.
    10. 10. Which points of discussion or developments are expected in the future? Include any relevant new legislation that will or could be introduced. 
  2. Testing
    1. 1. Can an employer oblige an employee to take a COVID-19 test? If so, is the employer required to provide workplace COVID-19 tests? If not required, can it opt to do so voluntarily? 
    2. 2. If the answers to the previous questions are yes, how often is the employee obliged to take a test? Can tests be performed by the employer's medical personnel or must they be done by a professional third party?
    3. 3. Is an employee obliged to share the outcome of a positive COVID-19 test with the employer?
    4. 4. Can an employee refuse to be tested? Should testing become a mandatory condition of employment?
    5. 5. Can an employer assign different duties to employees who are unable to present a negative COVID-19 test before entering the workplace?

Vaccination

1. What options does the employer have to encourage employees to be vaccinated? Can the employer provide a financial incentive to employees? 

The employer has the right to implement a policy in favour of vaccinations by means of raising awareness and encouraging vaccinations among employees. Similarly, providing a financial incentive to this effect would also be acceptable if such incentives are provided on equal terms for all relevant employees.

However, since public authorities are solely handling Turkey's vaccination programme (as explained in our response to question 2), an employee might not be able to receive the vaccination in the manner or time desired and therefore providing an incentive may not be effective.

2. Is the employer obliged to offer vaccines (or can it voluntarily offer vaccines) to employees? Is the employer obliged to support (or can it voluntarily support) third parties or governmental institutions providing vaccines to employees?

Currently, COVID-19 vaccination is conducted only by the Turkish Ministry of Health in accordance with the Vaccination Priority List prepared and published by the Ministry. As such, it is not possible for employers to provide vaccinations or support third parties to this effect.

3. Can the employer verify which of its employees have been vaccinated? If yes, can the employer make record of these vaccinated employees?

From a data privacy perspective, there are no specific rules or decisions given by the Turkish Data Protection Authority regarding whether employers can verify or record the vaccination data of employees. However, the Turkish Data Protection Authority did publish a guideline and a FAQ regarding how several data privacy matters should be handled during the pandemic. The authority emphasised that the general principles set forth within the Data Protection Law must be obeyed even during the pandemic.

According to Article 6 of the Turkish Data Protection Law, health-related data is one of the special categories of personal data that may not, in principle, be processed without the explicit consent of the data subject. As such, where employees willingly provide information on their status, then an employer may record this information, although an employer would be obliged to keep this information confidential and make it available to only relevant personnel (e.g. the company doctor).

Where consent has not been given for processing health-related data, such health data may only be processed by the persons subject to the secrecy obligation or by competent public institutions and organisations involved in the protection of public health; the operation of preventive medicine, medical diagnoses, treatments, and nursing services; the planning and management of health-care services; and their financing. Whether an employer’s processing of vaccination data would fall under this paragraph is currently unclear under Turkish data protection legislation.

From an employment law perspective, employers generally do not have a right to verify vaccination status. However, certain employers (e.g. those active in the medical sector) are entitled to verify this information since their employees would be considered at high risk of infection and the employer would be obliged to take the necessary health and safety precautions to avoid a workplace-wide infection.

4. Does an employee have a duty to inform the employer whether or not he or she has been vaccinated?

No, under the current legal regime, employees do not have a duty to inform the employer whether or not they have been vaccinated. 

5. Can the employer oblige employees to be vaccinated as a condition of employment? If yes, specify under what conditions. Include in your answer to what extent the nature of an employee's work activities or position is pertinent (e.g. does it matter whether the employee can work remotely?).

A COVID-19 vaccination cannot be a condition of employment for several reasons. Firstly, based on the current legal regime, making vaccinations compulsory may be deemed unconstitutional in that it may be regarded as a violation of bodily integrity. In this case, an employee could reject a vaccination and as a result, if a vaccination were a condition of employment, this would be regarded as a violation of the principle of equal treatment.

Secondly, as we have mentioned in Question 2, the Ministry manages the vaccination process in Turkey, and determines the persons who will be vaccinated according to the Vaccination Priority List. Thus, a candidate would not be able to willingly receive a vaccination as a requirement for employment, even if the candidate wished to be vaccinated.
Currently, this applies equally for homeworking employees and employees who are present in the regular office. 

In the future, the Turkish government may further regulate this area and allow employers that are active in certain sectors to ask for verification of vaccination or even mandate that employees in these sectors receive vaccinations prior to beginning work.

6. Can employees refuse to be vaccinated? If so, is the employee obliged to give the reasons for refusing? 

The protection of a person's physical integrity is regulated under the Turkish Constitution, which prevents any kind of physical violation, non-consensual medical or scientific testing, etc. unless this fundamental freedom has been duly limited by law. Currently, no specific law mandating vaccination for COVID-19 is in place. As a result, a COVID-19 vaccination could not in principle be forced due to this protection. Similarly, an employee is not obligated to give reasons for refusing a vaccination. 

However, vaccinations for employees in certain high-risk sectors (e.g. the medical sector) may be requested due to the employers’ prevailing health and safety requirements, and its obligations to maintain a disease-free workplace.

7. Can the employer refuse to admit employees into the workplace if they are not vaccinated (i.e. is it possible to make two categories of employees)?

Because an employer cannot force an employee to get vaccinated, the company cannot refuse to admit unvaccinated employees into the workplace. There is no legal basis for this refusal. Based on current precedents by Turkish courts, such a refusal might be considered an act of unilateral termination of employment by the employer.

As a result, employers may decide to make two categories of employees in this respect. Certain exceptions, outlined above, might apply to this principle.

8. Can the employer instruct non-vaccinated employees to perform different duties? If so, under which circumstances?

As there is, in principle, no legal basis for an employer to treat vaccinated and non-vaccinated employees differently, asking non-vaccinated employees to perform different duties might result in a breach of the equal treatment principle under Turkish Labour Law.

9. How should international business travel be managed? Include any local requirements where proof of vaccination is necessary to enter your jurisdiction.

Currently, the Turkish government does not require that individuals traveling to Turkey provide proof of vaccination. 
However, passengers arriving in Turkey are required to submit a negative PCR test taken within 72 hours before the passenger's scheduled departure from the country of origin. In addition, all passengers must complete a passenger information form when arriving in Turkey.

As for employees traveling to a foreign jurisdiction, an employer may ask that an employee returning from any employer-mandated business travel remain at home and work remotely for at least 14 days, starting from the end of the trip. However, the rights of such an employee may not, in any way, be limited during this period. 

10. Which points of discussion or developments are expected in the future? Include any relevant new legislation that will or could be introduced. 

Turkey has recently enacted a distant working regulation, which unfortunately has not brought definitive terms to various COVID-19-related issues.

Several pieces of legislation regulating dismissal bans and short-time work were enacted earlier in the pandemic and continue to be in effect. Similarly, various economic measures have been implemented to battle the pandemic. 
Other than these, no other legislation is anticipated, including amendments to laws currently in effect concerning COVID-19 vaccinations and their affect on employment law. 

We expect, however, that various COVID-19 matters will be subject to and We expect, however, that various matters related to COVID-19 will be subject to and ultimately resolved by the courts and not necessarily by new legislation.

Testing

1. Can an employer oblige an employee to take a COVID-19 test? If so, is the employer required to provide workplace COVID-19 tests? If not required, can it opt to do so voluntarily? 

No. According to the Turkish Constitution, the protection of a person's physical integrity prevents any kind of physical violation, including (without limitation) non-consensual medical or scientific testing, etc. As a rule, compulsory testing is not possible. 

However, an employer should be able to ask an employee to be tested in certain circumstances such as when the employee shows symptoms of illness, has been in contact with an infected individual or has traveled to an area of high risk.
In this case, the employer would also be entitled (and obligated) to restrict an employee from entering the workplace. Before being permitted to reenter the workplace, an employee could be required to present a medical report evidencing that the employee’s illness has been cured and that the employee is fit to resume work.

2. If the answers to the previous questions are yes, how often is the employee obliged to take a test? Can tests be performed by the employer's medical personnel or must they be done by a professional third party?

As indicated above, no regulation exists authorising employers to conduct obligatory COVID-19 tests. Thus, any testing must be voluntary. 

When voluntary testing is performed at the employer's worksite, these tests must either be performed by qualified medical personnel or by the company doctor.

3. Is an employee obliged to share the outcome of a positive COVID-19 test with the employer?

COVID-19 test results are considered health data and, as such, the sensitive personal data of employees. Since the processing (including the disclosure) of such personal data is subject to certain conditions set by the Turkish Data Protection Law, employees might not be legally obliged from a data privacy perspective to share the outcome of their COVID-19 tests with employers. 

On the other hand, employees owe a loyalty obligation to their employers and this should prevail over data privacy principles given the serious nature of this pandemic. In this regard, employees should be obliged to share the outcome of such positive tests, especially if the employees are working in close contact with others.

4. Can an employee refuse to be tested? Should testing become a mandatory condition of employment?

Due to constitutional protections on personal physical integrity, employees can refuse to be tested. As such, COVID-19 testing might not become a mandatory condition of employment, as indicated above.  

However, an employer should be able to ask an employee to be tested in certain circumstances such as when the employee shows symptoms of illness, has been in contact with an infected individual or has traveled to an area of high risk.

5. Can an employer assign different duties to employees who are unable to present a negative COVID-19 test before entering the workplace?

As indicated above, an employer is entitled (and obliged) to request that an employee who shows symptoms of COVID-19 produce a negative test result. The employer has the right not to allow the employee into the workplace without such a report or if symptoms persist. In this respect, the employer should refrain from engaging the employee in different duties and insist that the employee not enter the workplace at all, regardless of the worker's duties.

If an employee has been in contact with an individual with a confirmed infection or has travelled to a high-risk location, the employer can ask the employee to work remotely and perform different duties for a temporary period.