Compulsory Vaccination Studies in Covid-19 Pandemic Period
Introduction
As the vaccination studies related to the COVID-19 Pandemic, which affected the whole world, started to yield positive results, a worldwide vaccination mobilisation was initiated in order to eliminate the negative effects of the pandemic all over the world, as a result of these studies, a large majority of the population, especially in European states, were vaccinated and a small step was taken towards normalisation, and in our country, whether vaccination is an obligation in the fight against the pandemic or the legal basis of compulsory vaccination practices has started to be discussed more and more frequently.
In this context, the issue of compulsory vaccination is in close contact with the human rights institution, the protection of personal data in the legal context, and human resources and labour law, as employee and employer relations are at the centre of the issue. In this examination, the contact points of compulsory vaccination will be examined for compliance with the law.
Current World
Although the German Government stated that it would not apply a ‘compulsory vaccination’ policy to its citizens when the vaccination studies first started around the world, the applicability of compulsory vaccination is an issue that has been put on the agenda due to the aggravation of the epidemic and the vaccine being seen as the only way of salvation.
Likewise, the United Kingdom has tried to implement the provision of the law that ‘a public health officer may, at any time, take such measures as he or she considers necessary and proportionate for the protection of the individual’s own interests, the protection of others or the protection of public health’ for individuals with suspected coronavirus, but the validity of this article within the scope of the European Convention on Human Rights has been a matter of debate.
Along with all these studies, the European Commission (European Commission) embarked on the preparation of a vaccination strategy and practice for the COVID-19 vaccine and stated in its related studies that ‘vaccination is the only way out’. However, it is noteworthy that the Commission does not mention the concept of compulsory vaccination in any of these reports, despite stating that vaccination is the only way out.
The European Court of Human Rights (‘ECtHR’) has not yet issued a decision on compulsory vaccination in the coronavirus outbreak. However, the decision of the ECtHR in Solomakhin v. Ukraine no.24429/03 may provide guidance on how to decide on an application made to it regarding the implementation of a compulsory vaccination policy by countries within the scope of the fight against coronavirus. The judgment concerns the case of Solomakhin, who went to a hospital for another treatment and was forcibly vaccinated against his will by hospital staff, which is compulsory under Ukrainian law, despite his objection, and brought this case to the ECtHR. In the relevant case, Solomakhin claimed that he developed chronic illnesses after being administered this legally compulsory vaccine and that these illnesses were caused by the forced vaccination. Although Solomakhin could not prove his claim, the ECtHR accepted Solomakhin’s application and ruled that this situation constituted a violation of Article 8 of the ECHR. In the relevant judgement, the ECtHR emphasised that a balance must be struck between public health and the integrity of the person’s body.
As of July 2021, as the rate of increase in coronavirus infections accelerated due to the birth of the highly contagious delta variant, governments around the world started to make COVID-19 vaccinations mandatory for high-risk groups, especially healthcare workers. Although the governments that have implemented the vaccination obligation, albeit partially, make the vaccine compulsory for their citizens, who are mostly in the high-risk group, we see that there are also practices that prevent social life and surveillance society practices. In this context;
As the 2020 Tokyo Olympics was postponed due to the pandemic, Australia has made the vaccine mandatory for this year’s event, as the Paralympic athletes who will participate may pose a health risk to other members of the team.
Nightclubs and other venues expected to be crowded in the UK require customers to provide full proof of vaccination from the end of September.
According to the rules announced by the President of France, any person wishing to go to the cinema or take a train must provide proof of vaccination or present a negative COVID test, and a similar decision was announced by the Turkish Football Federation.
Within the scope of the new measures, it was announced that only vaccinated customers will be allowed to be in indoor bars, cinemas, theatres and indoor areas in Greece.
In his announcement, the Governor of New York stated that approximately 250 thousand employees across the state are obliged to be vaccinated or tested weekly to prevent an increase in COVID-19 cases.
While it seems to be a common point that health workers are within the scope of mandatory vaccination in governments where vaccination is mandatory, in Italy, the sanction that the relevant persons may be suspended from their jobs for a year without any payment in case of vaccine refusal has been introduced.
Although there is no obligation to vaccinate the athletes taking part in the Tokyo Olympics, the International Olympic Committee (IOC) officials reported that they expect 80% of them to be vaccinated and it was stated that 85% of the athletes were immune. Although there are measures such as testing athletes every day, vaccination is not included in the conditions of participation in the Olympics.
Legal InfrastructureIn this text, we will try to evaluate the effects of compulsory vaccination studies within the scope of human resources and labour law, which are foreseen to be shaped according to the approach of human rights law, personal data protection law and personal data protection law, which are sensitive issues that may cause the most intense discussions.
Human Rights
The Constitution stipulates that fundamental rights and freedoms may be restricted without prejudice to their essence only for the reasons set out in the relevant articles of the Constitution and only by law. It is also regulated that these limitations cannot be contrary to the principle of proportionality. However, in our national legal system, 1593 sy. In our national legal system, there are some doctrinal opinions arguing that Articles 57 and 72 of the Law on Public Hygiene (‘LHL’) can be used as a basis for compulsory vaccination. However, it is seen that Article 57 of the IHL includes certain diseases and the coronavirus outbreak is not among the relevant diseases due to its adoption on 24.04.1930.
The decision of the Constitutional Court (‘CC’) in Halime Sare AYSAL (2013/1789) is instructive in this regard. Namely; Uşak Provincial Directorate of the Ministry of Family and Social Policies requested a health measure in accordance with Article 5/1/d of the Law No. 5395 due to the fact that the child’s infancy vaccinations were not administered by his/her parents, and Sivas Civil Court of First Instance decided to apply a health measure against the child by accepting the child as a child in need of protection in accordance with Article 3/1/a of the Law No. 5395, despite the explanation and training regarding the importance of vaccines in the Expanded Immunisation Programme.
The Constitutional Court, as a result of the examination made upon the application made to it;
In the provisions of national and international legislation on medical interventions, the consent element is stipulated as the basic condition, and in terms of interventions to be applied to minors or restricted persons under custody or guardianship, the consent of the legal representatives is substituted for the consent of the subject of the medical treatment in question, and the situations in which exceptions can be made to the consent requirement are generally limited to cases of medical necessity in the context of emergencies and situations specified in the law.[7] In addition, in the relevant decision, the Constitutional Court stated that the fundamental rights and freedoms regulated in Article 13 of the Constitution and the fundamental rights and freedoms regulated in Article 13. Article 13 of the Constitution and that fundamental rights and freedoms can only be restricted by law, subparagraph (1) of paragraph (a) of paragraph (1) of Article 3 and subparagraph (1) of paragraph (1) of Article 5 of Law No. 5395, which are shown as the legal basis of the intervention subject to the relevant application. subparagraph (1) of paragraph (a) of paragraph (1) of Article 3 (1) and subparagraph (d) of paragraph (1) of Article 5 of Law No. 5395, which are shown as the legal basis of the intervention subject to the application, and which indicate that a health measure will be ruled in general without making an explanation about the type and scope of the medical intervention to be applied, do not have the quality of foreseeability, and in addition to the regulations mentioned in the decision, there is no regulation that would constitute a legal basis for compulsory vaccination within the scope of Law No. 1593,
The Constitutional Court found the assessment of the child subject to the application as a child in need of protection contrary to Article 17 of the Constitution. In addition, the Constitutional Court ruled in the relevant decision that expanding the list of diseases in an uncertain and unpredictable manner by circulars or orders of the Ministry of Health would constitute a violation of the principle of legality and that such a practice could disproportionately pave the way for medical interventions.
In the doctrine, it is emphasised that general health, unlike private health, is not related to the improvement of individual persons but is of a social nature. It is stated that this concept refers to the protection of the whole society from epidemics and living in a healthy environment. Even though the Constitution stipulates that ‘Everyone has the right to live in a healthy and balanced environment’ and that the state is obliged to ensure that everyone maintains his/her life in physical and mental health, the balance of compulsory vaccination practices with the right to bodily integrity and the right to freely dispose of one’s body should not be ignored. The conflict of rights between this right and public health and the state’s responsibility to provide its citizens with the opportunity to live in a healthy environment should be taken into account and the proportionality between these rights should be balanced.
As with the principle of legality, one of the concrete legal problems within the scope of compliance of administrative law enforcement activities carried out for the protection of public health with the principle of proportionality is related to compulsory vaccination. It can be said that not testing the voluntary vaccination policy before implementing the compulsory vaccination policy would be contrary to the principle of proportionality. As a matter of fact, considering the countries that have achieved high vaccination rates with completely voluntary vaccination programmes, it can be said that it would be more in line with the principle of proportionality to first test the voluntary vaccination policy and if this policy is insufficient to ensure herd immunity, only then to switch to the compulsory vaccination policy.
After the compulsory vaccination policy is based on a legal provision, the norm of measured/proportionate penal sanctions for contrary behaviours can be included in the aforementioned laws, as well as in the Turkish Criminal Code no. 5237. It is quite possible to regulate it in the Crimes Against Public Health section of the Turkish Criminal Code and to add an additional paragraph to Article 195 under the title of Disobeying Measures Regarding Infectious Diseases.
The compulsory vaccination stipulated in Article 72 of the ILC is applied when the diseases listed in Article 57 become epidemic. The only compulsory vaccination regulated under the ILC that does not require a disease to become an epidemic is smallpox vaccination. As a matter of fact, the Ministry of Health answers the question ‘Will vaccination be compulsory?’ in the COVID-19 Information Platform as ‘Vaccination, including childhood vaccinations, is not compulsory in Turkey’. Apart from national legal sources, international law and human rights documents define vaccination as a right and an obligation. The right of everyone to live in a healthy and balanced environment is recognised, and the state and the citizen have a common responsibility and duty in this context.
In our country, as of July 2021, when this text was written, measures such as banning people who are not vaccinated against COVID from entering certain public places and excluding them from some travel practices; on the other hand, although the vaccination issue has gained momentum with the statements that almost all of the current COVID-positive cases are caused by unvaccinated people, it can already be foreseen that the vaccination issue should be used as a justification for social / positive discrimination and that vaccination practices should be handled with a very sensitive balance, even if it will be made compulsory in the following periods.
At this point, the enactment of a Pandemic Law at the beginning of the pandemic process could have been much more useful and functional in terms of curfew restrictions, vaccination policies and the regulation of social and economic life. Today, while the course of these discussions could have been minimised by enacting the Pandemic Law, it has been ignored and has caused and continues to cause a lot of confusion among both citizens and administrators.
Protection of Personal Data
As it is known, in our country, health information is considered as special categories of personal data pursuant to the Law No. 6698 sy. Pursuant to the Law on the Protection of Personal Data (‘KVKK’) and the relevant legislation, health information is considered as sensitive personal data. For this reason, the information on whether a person has been vaccinated or not is also considered as health data. Article 6/2 of the LPPD stipulates that ‘Personal data relating to health and sexual life may be processed for the purposes of protecting public health, preventive medicine, medical diagnosis, treatment and care services, planning and management of health services and financing, by persons or authorised institutions and organisations under the obligation of confidentiality, without seeking the explicit consent of the data subject. In fact, it will be possible to process the vaccination information about individuals or share it with the relevant institutions and organisations by regulating the legal basis of the mandatory vaccination practice within the scope of the fight against coronavirus, which has been a deficiency in the processing of health information for a long time.
In order for health data to be processed by employers or persons who are not covered by the above-mentioned article, as a rule, the data subjects must be informed and their explicit consent must be obtained. Another issue that needs to be addressed at this point is the vaccination record. In summary, a vaccination record is a fiction that will enable the tracking of vaccinated persons and will be operated through an application. The use of information on whether a person has been vaccinated or not in various ways, such as contact tracing monitoring applications[9], will require the processing of the right to protection of personal data on the basis of law together with the human rights discussed under the previous heading. Any natural or legal person who needs information on whether the person has been vaccinated or not will essentially process the private health data of individuals. At this point, maximum attention should be paid to the basic principles and the legal reasons for processing and the principles of being connected, limited and proportionate to the purpose. As a rule, it should be accepted that vaccination information cannot be processed under the assumption that the person does not consent.
At this point, the issue of the validity of the consent that may arise especially in the employee-employer relationship and the unwillingness of individuals to share their vaccination information are important. Even if the employee is vaccinated, this information does not have to be shared with the employer, and the employer does not have the right to take this information from the employee by force. For this reason, an employee’s employment contract cannot be terminated on the grounds that vaccination information is not shared or that the employee has not been vaccinated. The issue will be analysed in depth in the following section.
Human Resources and Labour Law
In line with the Constitutional regulations, the employer’s obligation to protect the occupational health and safety of employees is stipulated in Article 4 of the Occupational Health and Safety Law No. 6331 (‘OHSL’) under the title ‘General obligation of the employer’. As mentioned in the article, the employer is required to carry out a number of activities such as preventing occupational risks, taking all kinds of measures, including training and informing employees, and organising the work. In addition, it is stated in the decision of the 10th Civil Chamber of the Court of Cassation dated E.2019/5135, K.202,5045, 28.09.2020 that the employer is obliged to take measures even in matters not regulated by law.
The primary obligation imposed on employers during the COVID-19 pandemic has been to ensure that the necessary measures are taken in terms of OHSK and thus to create a risk-free working environment for all employees. According to Article 15/1/a of the OHSK on the employer’s obligation to carry out health surveillance, ‘The employer shall ensure that employees are subjected to health surveillance, taking into account the health and safety risks they will be exposed to in the workplace.’ When evaluated in terms of the COVID-19 outbreak, which is a social health risk, it will be possible to interpret that the epidemic disease is related to work as long as the risk of transmission of the epidemic disease increases in the workplace environment. The employer, who is responsible for the occupational health and safety of the workplace environment of the employees, has the obligations mentioned in accordance with the OHSK during the continuation of the COVID-19 outbreak. Accordingly, requesting COVID-19 vaccination information or imposing an obligation to be vaccinated within the scope of health surveillance, which is imposed on the employer as a legal duty, seems legitimate at first glance, but should be processed within certain limits in accordance with the nature of the protected right.
As stipulated in the OHSK, employees also have certain obligations towards the employer in terms of the protection of occupational health and safety. Pursuant to Article 19/1 under the heading ‘Obligations of Employees’, it is stated that employees are obliged not to jeopardise the health and safety of other employees. In addition to these obligations, employees are obliged to comply with the measures taken in the workplace specifically for COVID-19 disease during the pandemic and to follow the orders and instructions given in this regard.
The ideal step to be taken by employers in terms of vaccination of their employees; information, publications, various brochures and videos encouraging vaccination and stating the benefits of vaccination, and collective / individual information by the workplace physician. In this context, since vaccination is of great importance in creating a healthy and safe working environment in the workplace in terms of minimising pandemic risks, the employer should also take into account its OHS obligations at every stage of its approach to vaccination.
On the other hand, if the employee avoids the medical examination without a justified excuse, it will not be possible for the employer to perform a non-consensual medical examination on the employee, and it can be said that this situation also applies to vaccination. However, on the contrary, in line with Article 25/II-h of the Labour Law, it is accepted that the employer may terminate the employment contract of the employee who endangers occupational health and safety by avoiding the medical examination for just cause. As mentioned in a decision of the Izmir Regional Court of Appeal, ‘The employee’s failure to comply with the rules regarding occupational health and safety by not undergoing periodic health check-ups despite the warning made pursuant to subparagraph h of the second paragraph of Article 25 of the Labour Law; in the event that the employee endangers occupational safety through his/her own fault according to subparagraph i of the second paragraph of the aforementioned article, or the employee’s behaviour incompatible with integrity and loyalty, as regulated in subparagraph e of the second paragraph of the aforementioned article, constitutes just cause for the termination of the employment contract for the employer.’
Despite all these; although the approach of our country’s legislators and judicial authorities to the issue has not yet been determined and there is no legal regulation on the subject, in our opinion, the method of terminating the employment contract of non-vaccine employees for valid reasons at the most extreme point, rather than termination for just cause, can be considered as a more appropriate way in accordance with the principle of termination as a last resort. However, the decisions of the judicial authorities in possible trial situations in accordance with the Pandemic period specifics cannot be foreseen at the moment.
Epilogue
As explained above, making vaccination policies compulsory without applying the principle of voluntariness will contradict the principle of proportionality at the constitutional level. While it is clear that vaccination can be encouraged within the scope of employers’ obligation to protect the health of employees within the scope of the aforementioned legislation, whether it constitutes a risk factor that will lead to termination with just cause should be evaluated according to the characteristics of the concrete case. In cases where the employee who avoids vaccination does not have a valid excuse and it is a job that requires physical presence at the workplace, he/she should be able to take certain measures within the scope of the obligation to protect the physical and mental health of other employees.
In our opinion, at the end of the day, it is clear that one of the main reasons for all these discussions is the lack of a Pandemic Law. The current legal regulations have not been designed with a biological natural disaster situation with long-term effects worldwide in mind. The attempt to integrate all the regulations in social, cultural, economic and administrative areas such as curfew restrictions, mandatory quarantines, termination bans, postponement of payments, the status of health workers, unpaid leaves, closed workplaces and even the current market circular into the existing legislative structure causes problems in many areas. The fact that a legislation that can radically solve these problems has not been designed – perhaps because it was not foreseen that the process would take so long – continues to be a need today, albeit late.
