Legal Dimension of PCR Test Obligation in Workplaces and Vaccination Ration Card Practices

  1. Introduction

    Although the COVID-19 Coronavirus Pandemic continues to maintain its stability and seriousness in the number of cases, social perceptions are changing a little more every day. According to the Ministry of Health Information Platform; as of mid-October 2021, nearly 90% of the population has received the first dose and 75% the second dose of vaccine.

    Therefore, although the number of cases has doubled compared to the periods when extraordinary measures were taken, it is observed that both citizens and administrative authorities are ready for normalisation in connection with the fact that vaccination practices are alleviating the course of the disease.

    While the related normalisation efforts are being carried out, efforts are being made to prevent the pandemic from increasing its impact again by stipulating regulations, sometimes advisory and sometimes mandatory, from public institutions and organisations within the scope of controlled return to social and economic life.

    Current Developments

    As the first substantive development on the subject, the European Data Protection Supervisor (‘EDPS’) published the Guidance on Return to the Workplace (‘Guidance’) dated 9.8.2021. The Guidelines summarise

    Return to work strategies should be bound by the principle of legality,
    Considering the basic principles and legal grounds in the processing of personal data and paying attention to the validity conditions of information and explicit consent notifications,
    Interfering as little as possible with constitutional rights and freedoms and avoiding the processing of sensitive personal data, such as PCR test results, by means of logging,
    An anonymous survey can be conducted in order to follow the developments in vaccination studies or to determine the current situation within the institution,
    The Ministry of Labour and Social Security (‘MoLSS’) announced its opinions with recommendations and examples on the appropriateness of an operational decision as a basis for the PCR obligation.
    The Ministry of Labour and Social Security (‘MoLSS’) sent a circular dated 2.9.2021 (‘Circular’) to 81 Provincial Governorships, informing employers about the PCR test to be requested from their employees and informing their employees about COVID-19 risks and measures. According to this Circular;
    Based on the obligation of employers to inform all their workers about protective and preventive measures, employers should inform their workers who have not completed COVID-19 vaccination in writing,
    In the event that workers who have not completed the COVID-19 vaccination despite being informed in accordance with the labour and social security legislation are diagnosed with definitive COVID-19, the employer will notify them of the possible consequences,
    It has been decided by the workplace/employer that workers who have not been vaccinated against COVID-19 may be required to have a PCR test once a week as of 06/09/2021 and the test results will be recorded in the workplace for the necessary procedures.
    Subsequently, with the ‘Public Announcement on Covid-19 PCR Test Result and Vaccination Information Practices’ (‘Announcement’) dated 28.09.2021, the Personal Data Protection Board (‘Board’) made some explanations on its website. These explanations are tried to be explained as follows in terms of the Personal Data Protection Law No. 6698 (‘KVKK’):
    Information on the health status of individuals such as analyses, imaging, tests, reports, vaccination status is personal health data according to Article 6 of the LPPD and is in the category of special categories of personal data. For this reason, such information must be processed in accordance with the processing conditions specified in Article 6 of the KVKK.
    Within the scope of the fight against the epidemic, it is inevitable that personal health data related to Covid-19, such as vaccination status and PCR test result; It is inevitable that it is necessary to process for the protection of public health, public security and public order.
    In subparagraph 28/1/ç of the Law, it is regulated that the provisions of the LPPD shall not apply if ‘Personal data are processed within the scope of preventive, protective and intelligence activities carried out by public institutions and organisations entrusted and authorised by law to ensure national defence, national security, public safety, public order or economic security’.
    It is considered that the processing of personal data within the scope of the activities carried out by public institutions and organisations authorised by law in order to prevent the contagiousness of the epidemic disease in order to eliminate this threat in cases that threaten public security and public order such as epidemics should also be evaluated within the scope of Article 28/1/ç of the Law.
    Since the epidemic caused by Covid-19 threatens public security and public order, there is no obstacle to the processing of Covid-19 vaccination information and / or PCR test information with negative results within the scope of preventive and protective activities carried out by public institutions and organisations within the scope of the provision of the said article in order to prevent the spread of the disease, Therefore, it is assessed that the personal data processing activities in question can be carried out within the scope of Article 28/1/ç of the Law, however, personal data processing activities other than the activities for the purpose of protecting public security and public order carried out within the scope of the Covid-19 outbreak or exceeding this purpose will be covered by the KVKK.
    Obligation and Practice of Providing PCR Test and Vaccination Report Card

    Vaccination activities and PCR tests are medical interventions that touch the bodily integrity of the person and the purpose of the intervention is to protect the public interest. For this reason, it is necessary to interpret the mandatory PCR test and vaccination ration card practices together with Article 13 titled ‘Limitation of Fundamental Rights and Freedoms’ and Article 17 titled ‘Immunity, Material and Spiritual Being of the Person’ of the Constitution.

    According to Article 13 of the Constitution, ‘Fundamental rights and freedoms may be restricted only by law.’ and Article 17 of the Constitution, ‘Except in cases of medical necessity and in cases stipulated by law, the bodily integrity of the person may not be touched; he may not be subjected to scientific and medical experiments without his consent.’ When interpreting the laws, avoiding the principle of literal interpretation and interpreting the laws in spirit, taking into account the concept of ‘the value sought to be protected’, ensures the purposefulness of legal systems. For this reason, it can be easily concluded that situations that violate the liberty and bodily inviolability of the person, such as PCR testing and vaccination rationing, can only be determined by law.

    Since according to Article 17 of the Constitution, lawful interference with bodily inviolability can only be made in cases stipulated in the law and in cases of medical necessity, the first legal basis that can be referred to is Article 57 of the General Hygiene Law. In this article, it is regulated that in cases of a limited number of diseases, the measures specified in Article 72 of the same law shall be taken. Since the legislator has determined these diseases one by one, it should be accepted that the limited number (numerus clausus) principle will be valid in the relevant article and Covid-19 is not counted among these diseases.

    Therefore, when the obligation to submit a PCR test and vaccination record due to the COVID-19 Pandemic is considered together with Articles 13 and 17 of the Constitution, the regulation of the PCR test obligation by the ÇSGB through a circular may violate the fact that fundamental rights and freedoms can only be restricted by law and may lead to unlawful consequences within the framework of the usurpation of the legislator’s authority.

    However, at first glance at the Announcement, it is clear that the practitioners to be covered by the exception are public institutions and organisations and that the private sector cannot benefit from the same protection. The statement in the last paragraph of the Announcement that ‘data processing activities that exceed this purpose will be covered by the LPPD’ is a discourse that may pose a risk for employers, requiring them to obtain ‘mandatory explicit consent’ from their employees within the scope of these activities.

    As previously explained in our previous article, in order for mandatory vaccination practices to be implemented, firstly, the expected rates in voluntary vaccination practices should not be achieved. The fact that the vast majority of the country has been vaccinated in line with voluntary policies is an indication that compulsory vaccination policies will not be adopted.

    From this perspective, employers’ demand for vaccination certificates or evidence of such certificates from employees may undermine the voluntary nature of national vaccination policies and the principle of autonomy, which stipulates the right of adults to make decisions about their own treatment. In addition, the primary option for employers not expressly authorised to require vaccination certificates or PCR tests could in the future be easily interpreted as disproportionate and lead to administrative fines.

    Due to the ambiguities in the Board’s Announcement, in response to the Board’s requests for additional clarification through secondary communication channels on whether employers would be covered by the exemption, it was stated that employers who would act on the instructions of the MoLSS would also be covered by the exemption. However, this clarification has led to unfortunate consequences.

    Namely, even if the Ministry is acting under the instruction of the Ministry, there is no regulation that can be accepted as valid in terms of the hierarchy of norms; therefore, explicit consent is required for the processing of the data in question, but the board, which stated that it would fall within the scope of the exception if this method is applied, may rule on the violation decision due to the ‘lack of any basis for obtaining explicit consent’. The luxury of relying on the exception of Article 28 of the Law should only be given to public authorities.

    Employer’s Obligation

    As stated in Articles 4 and 16 of the Occupational Health and Safety Law and the Circular, the employer is obliged to inform the worker about all health and safety measures and the consequences of non-compliance with these measures. The employer is obliged to make this notification obligation in writing to workers who do not have COVID-19 vaccination, and as of 6.9.2021, it will request a PCR test once a week from workers who do not have COVID-19 vaccination and keep the results of these tests on record.

    Since the Executive has made the PCR test mandatory for the worker, the employer will not be able to charge the time spent by unvaccinated workers during working hours for PCR testing to the worker through wage deductions. If the employer deducts wages, the debtor’s default may occur.

    The employer must inform the employee about the legal consequences that may arise if the unvaccinated employee is diagnosed with COVID-19. Pursuant to Article 25-1/a of the Labour Law, it is regulated that in the event that the employee suffers from a disease caused by his/her own intention, the employer may be entitled to terminate the employment contract for just cause if the absenteeism arising from this reason lasts for 3 consecutive working days or more than 5 working days in a month.

    When the relevant legal article is considered on the basis of COVID-19, being vaccinated does not have a definite result in preventing the disease or its carrier. For this reason, even if the employer does not have the right to terminate for just cause, it can be evaluated that the employer may apply for termination for valid reasons against employees who are not vaccinated and have COVID-19.

    Obligation of the Worker

    In terms of labour and social security legislation and the Turkish Code of Obligations, the employee has a contractual duty of care towards the employer’s work. It can be said that the employment contracts of workers who oppose the PCR test application cannot be protected by the legal order in accordance with the current legal legislation and may be considered as valid termination, although it does not open the way for the employer to terminate for just cause.

    If the workers who are not vaccinated and prefer PCR test application are COVID-19 positive and their attendance to work remains below the periods specified in the law, it may come to the agenda that the employment contract cannot be terminated for just cause, but may be terminated for valid reasons.

    Termination of the employment contracts of workers who are vaccinated and are COVID-19 positive in accordance with their absenteeism will not be subject to termination by the employer for just cause or valid reason on the grounds that the employee has fulfilled his/her duty of care.

    However, it should be kept in mind that in all scenarios, the employer should primarily observe the principle of last resort.


    Pursuant to both the Constitution and the relevant legislation, the Circular of the Ministry of Labour and Social Security and the Announcement issued by the Board, which stipulates the implementation of PCR testing in workplaces, contain many loopholes, and it is unclear how the employment contract between the employer and the employee will evolve as a result of non-compliance with the regulations, and whether employers will be considered exempt within the scope of the Announcement.

    Since the introduction of the PCR test practice with the Circular causes the restriction of fundamental rights and freedoms without a legal remedy, it is a matter of debate as to how the judicial authorities will decide in case of violations of rights that may arise.

    In this regard, we are of the opinion that the legalisation of the regulations made by the legislator, as in the case of the European Union, rather than by general letter, circular or decree, may prevent the discussions in this direction.