The circular covering the Covid-19 risks – measures of the employees and the PCR test issues that the employers will require from their employees by the Ministry of Labor and Social Security was sent to the Governorship of 2 Provinces on September 2021, 81. Can a worker who does not have a PCR test be dismissed? What route will the Employer follow for the PCR test?
In the letter sent to the governorships by the Ministry, it was announced that employers are obliged to inform their employees about protective and preventive measures against health and safety risks that may occur in their workplaces. It was stated that employees should be informed about the benefits of the vaccine during the pandemic process our world is in. It was underlined that the unvaccinated employees should be informed about the possible consequences of being diagnosed with Covid-19 in terms of work and social security legislation. It was stated that as of September 6, 2021, workplaces and employers may require PCR testing from workers who are not vaccinated against Covid-19, and that the test results should be recorded in accordance with the KVKK at workplaces.
What route will the Employer follow for the PCR test?
Businesses will first request whether their employees have been vaccinated and whether they have completed their vaccinations, and will record this data in accordance with the Personal Data Protection Law No. 6698 (KVKK). Then, employers will inform their employees who have not been vaccinated or have not completed their vaccinations, in writing, about the benefits of the Covid-19 vaccine, and the possible risks and precautions that may be encountered in the business if they are not vaccinated. At the end of this information, employers are also obliged to inform their employees who do not have or have not completed their vaccination, and if they are diagnosed with Covid-19, the results they will encounter in accordance with the labor and social security law. Article 6331 of the Occupational Health and Safety Law No. 19 states that employees are obliged not to endanger themselves and other employees in terms of health and safety due to their work. According to this article, it is legally appropriate for employers to request PCR testing from unvaccinated employees in order to protect the health and safety of all employees in the business. Persons who do not give the PCR test, despite the request of their employer, may be asked to defend themselves by giving a written warning.
The Covid-19 process continues to change business life. The measures taken to protect the health of workers bring new duties and responsibilities to the employees of the human resources department of the companies. Both the vaccination status of the employees and the PCR test results of those who are not vaccinated are managed effectively, efficiently and in accordance with the KVKK through the cloud and mobile-based complianceHRM (Human Resources Management) program. UyumHRM is an integrated HR software that contributes to the productivity and efficiency of companies by supporting changing HR functions.
Can a worker who does not have a PCR test be dismissed?
In the article published by the Ministry of Labor and Social Security, it was stated that, as the reason for the mandatory testing, people who have not completed their vaccination may worsen the health and safety conditions of other employees, disrupting the working peace and endanger the health of other employees.
So, can a worker who does not want to have the PCR test done despite the employer's request be dismissed? There are two different views on this subject, whose clarity is not yet known. Some experts say that if the vaccine is not mandatory, it is not mandatory to have a PCR test, and therefore the employer cannot dismiss the worker who does not submit the test. In another view, it is stated that if employers want the mandatory test, workers should have it done, and that employees who do not have the vaccine and are not tested can be terminated. This issue, which does not have a definite result yet, will set a precedent with the decision of the judiciary in the coming days if a dismissed worker does not take the test and applies to the court.
As it is known, PCR test is performed free of charge in public hospitals. If the employee takes the test in a private hospital due to a special situation, the additional cost incurred here will be paid by the employer according to the law.
PCR test mandatory in intercity public transportation and events
The Ministry of Interior has made PCR testing mandatory for people aged 18 and over who are not vaccinated, as of 6 September 2021, on airplanes, buses, trains and other public transportation vehicles on intercity travel, as well as in events and organizations where people attend collectively, such as cinemas, concerts, theaters.