I.
INTRODUCTION
As
well known, requesting drug tests from employees necessitates the establishment
of a delicate balance between the employer's obligation to ensure occupational
health and safety and the employee's right to privacy and the protection of
personal data. Since drug testing directly reveals an individual's health data,
it is subject to both the scope of Constitutional protection and the regime of
special categories of personal data under the Personal Data Protection Law Nr.
6698 (“PDP Law”).
In
this study, I have examined this subject within the framework of the
Constitution, the Personal Data Protection Law (“PDP Law”), Labor Law Nr. 4857,
Occupational Health and Safety Law Nr. 6331, as well as the precedents of the
Court of Cassation and the jurisprudence of the Personal Data Protection Board
(the “Board”).
II.
LEGAL FRAMEWORK GOVERNING THE EMPLOYER'S RIGHT TO REQUEST DRUG TESTS
2.1.
ARTICLE 20 OF THE CONSTITUTION – PRIVACY AND PROTECTION OF PERSONAL DATA
As per Article
20 of the Constitution:
"Everyone
has the right to demand respect for her/his private and family life."
"Everyone
has the right to request the protection of personal data concerning her/him."
The
said article stipulates that personal data may only be processed in cases
provided for by law or with the explicit consent of the individual. According
to this regulation, since drug testing contains data regarding an individual's
physical and psychological health status, it must be considered a direct
interference with the sphere of private life. Therefore; the
interference:
- Must have a
legal basis (or be prescribed by law),
- Must pursue a
legitimate aim,
- Must be
proportionate and necessary.
Routine
drug testing practices that are general and abstract in nature and directed at
all employees carry the risk of violating the principle of proportionality.
In
numerous decisions (TCC, App. Nr: 2013/1223; App. Nr: 2014/18001), the
Constitutional Court has emphasized that the protection of personal data is an
integral part of the right to respect for private life. [1] [2]
Since drug
testing involves:
-The
collection of biological samples from the individual,
- The
determination of their health status,
- The
detection of potential addiction status,
it
must be considered a severe interference.
Therefore,
such interference must satisfy the following conditions;
1. It must have
a legal basis,
2. It must
pursue a legitimate aim,
3.
It must be proportionate and necessary.
2.2. STATUTORY REGULATION UNDER THE PERSONAL
DATA PROTECTION LAW (PDP LAW)
2.2.1. Sensitive Personal Data (Art. 6 of PDP Law)
Article
6/1 of PDP Law sets out as follows:
“Health
data constitutes sensitive personal data.”
Pursuant
to this regulation, drug testing results must be directly acknowledged as
health data.
2.2.2.
Conditions for Processing Health Data
As
well known, pursuant to Article 6/2 of the PDP Law, sensitive personal data may
not, as a rule, be processed without explicit consent. However, Article 6/3 of
the PDP Law provides an exception to this requirement.
Article
6/3 of PDP Law sets out as follows;
The
processing of sensitive personal data is prohibited. However, the processing of
such data may only be possible if
a) The data
subject grants explicit consent thereto,
b) It is
clearly stipulated in the laws,
c)
It is mandatory for the protection of the life or physical integrity of a
person who is unable to express their consent due to actual impossibility or
whose consent is not legally recognized.
ç) It relates
to personal data made public by the data subject and is in accordance with
their will to make it public,
d) It is
mandatory for the establishment, exercise, or protection of a right,
e)
It is necessary for the purposes of protecting public health, preventive
medicine, medical diagnosis, treatment and care services, or the planning,
management, and financing of healthcare services, provided that it is carried
out by persons under the non-disclosure obligation or authorized institutions
and organizations.
f)
It is mandatory for the fulfillment of statutory obligations in the fields of
employment, occupational health and safety, social security, social services,
and social assistance,
h)
It is directed towards current or former members and associates, or persons who
are in regular contact with foundations, associations, and other non-profit
organizations or entities established for political, philosophical, religious,
or trade-union purposes; provided that it is in accordance with the related
applicable regulations to which they are subject and their purposes, limited to
their field of activity, and not disclosed to third parties.
(4) In the
processing of sensitive personal data, it is mandatory to take adequate
measures determined by the Board.
Health
data may be processed for the purposes of protecting public health and for
medical purposes by persons under the non-disclosure obligation.”
Accordingly:
- The test must
be conducted through an occupational physician.
- The employer
must not have direct access to health data.
-
The principle of data minimization must be applied.
2.2.3. Evaluation in Light of the Personal Data
Protection Board Decisions
The
Board emphasizes the following principles regarding the processing of
employees’ data:
2.2.3.1.
Validity of Explicit Consent
In
the Board’s decision dated 31.05.2019 and numbered 2019/165, it was stated that
the requirement for explicit consent to be based on “free will” within
an employment relationship is controversial, as an employee's consent cannot
always be deemed to be freely given in the presence of the employer [3].
Therefore, a general provision in an employment contract stating “I hereby consent
to drug testing” may not be sufficient on its own.
2.2.3.2.
Proportionality and Purpose-Limitation
In
the Board’s decision dated 25.03.2019 and numbered 2019/78, it was emphasized
that employers may only process employee data in a manner that is proportionate
and directly relevant to the execution of the work [4]. In line with this
approach, a routine drug testing practice applied generally to all employees
carries the risk of violating the principle of proportionality.
2.3.
LABOR LAW AND OCCUPATIONAL HEALTH AND SAFETY ASPECTS
2.3.1.
Occupational Health and Safety Law Nr. 6331
Pursuant
to Article 4 of the Occupational Health and Safety Law, the employer is obliged
to ensure the occupational health and safety of employees.
Article
4 of the Law Nr. 6331 reads as follows:
“ARTICLE
4 – (1) The employer is obliged to ensure the occupational health and safety of
employees, and accordingly;
“a)
The employer shall take any and all necessary measures for the prevention of
occupational risks, including the provision of training and information;
organize the necessary framework; provide the required tools and equipment;
adapt health and safety measures to changing conditions; and undertake efforts
to improve existing conditions.
b)
The employer shall monitor and supervise compliance with the occupational
health and safety measures implemented in the workplace and ensure that any
non-compliance is remedied.
c)
The employer shall conduct a risk assessment or have it conducted..
ç)
The employer shall, when assigning tasks to an employee, take into account the
employee’s suitability for the job in terms of health and safety.
d)
The employer shall take the necessary measures to ensure that employees who
have not received adequate information and instructions do not enter areas
where there is a serious and specific danger.
(2) The
engagement of external experts or service providers outside the workplace shall
not relieve the employer of its responsibilities.
(3) The
obligations of employees in the field of occupational health and safety shall
not affect the employer’s responsibilities.
(4)
The employer shall not pass on the costs of occupational health and safety
measures to the employees.”
Health
surveillance is set out under Article 15 of Law Nr. 6331.
Article
15 of Law Nr. 6331 reads as follows;
“ARTICLE 15 –
(1) The employer shall:
(a)
ensure that employees are subject to health surveillance, taking into account
the health and safety risks to which they will be exposed in the workplace.
b) The employer
shall ensure that employees undergo medical examinations in the following
cases:
1) Upon
commencement of employment.
2) When
changing jobs or positions.
3) Upon return
to work following a workplace accident, occupational disease, or repeated
absences due to health reasons, if requested by the employee.
4)
During the course of employment, at regular intervals determined by the
Ministry, taking into account the nature of the work, the employee’s
characteristics, and the workplace’s hazard classification.
(2)
Employees who will work in jobs classified as hazardous or highly hazardous
shall not be allowed to commence work without a medical report confirming their
fitness for the specific job.[7]
(3)
(Amended first sentence: 10/9/2014-6552/art.17) Medical reports required under
this Law shall be obtained from the occupational physician. For workplaces with
fewer than 50 employees or classified as low-risk, such reports may also be
obtained from ÇASMER (Employee Health Training Center), family physicians, or
other public health service providers. Any objections to the reports shall be
submitted to referee hospitals designated by the Ministry of Health, and the
decisions rendered are final.[8][9]
(4)
The costs arising from health surveillance, as well as any additional expenses
resulting from such surveillance, shall be borne by the employer and may not be
passed on to the employee.
(5)
The health information of employees undergoing medical examinations shall be
kept confidential in order to protect their privacy and reputation.”
As can be seen,
employers are required to conduct health surveillance of their employees.
However, such surveillance:
- must be based
on a risk assessment,
- must be
relevant to the nature of the work, and
-
must be proportionate.
Drug
testing is more firmly grounded in law when applied to employees engaged in
high-risk or hazardous work, such as driving, machine operation, aviation, and
security services. However, requesting tests from employees outside these
categories may require the fulfillment of additional conditions.
On
the other hand; as per article 28 of Occupational Health and Safety Law Nr. 6331;
- It is
prohibited for employees to come to the workplace under the influence of
alcohol or drugs, as well as to consume alcoholic beverages or drugs while at
work.
- The employer
has the authority to determine under what circumstances, at what times, and
under which conditions alcoholic beverages may be consumed in areas considered
extensions of the workplace.
However,
the prohibition on alcohol consumption does not apply to the following
categories of employees:
- Those working
in establishments where alcohol is produced, who are assigned to monitor or
inspect production as part of their duties.
- Those who,
due to the nature of their work, are required to consume alcohol in workplaces
where alcoholic beverages are sold or consumed, whether in closed containers or
openly.
-
Those who, as part of their job responsibilities, are required to drink alcohol
together with customers.
In
light of these provisions, as a general rule, an employee’s consumption of
alcohol outside the workplace does not constitute grounds for termination.
However, reporting to work intoxicated enables the employer to terminate the
employment contract for just cause. For alcohol consumed outside the workplace
to constitute a valid reason for termination, the level of intoxication must be
sufficient to impair the employee’s will and behavior, ultimately preventing
the fulfillment of the employee’s work obligations. In contrast, an employee
arriving at the workplace under the influence of drugs allows the employer to
terminate the employment contract for just cause, regardless of the substance’s
effects.
Moreover,
the use of alcohol or drugs in the workplace also constitutes grounds for
termination for just cause. This issue will be addressed in more detail below.
2.3.2.
Assessment in Light of Court of Cessation Decisions
In
various decisions of the 9th Civil Chamber of the Court of Cessation
(Decision, bearing the Basis number 2008/18614 and the Decision number
2010/14204, of the 9th Civil Chamber, and the Decision, bearing the
Basis number 2015/24607 and the Decision number 2017/13319, of the 22nd Civil
Chamber), working under the influence of or using drugs in the workplace has
been recognized as a valid ground for termination for just cause. [5] [6]
Likewise;
The
Decision, dated 21.04.2008 and bearing the Basis number 2007/31257 and the
Decision number 2008/9580, of the 9th Civil Chamber of the Court of
Cessation reads as follows;
“If
an employee breaches the obligations arising from the employment contract due
to alcohol consumption, and such conduct is not attributable to alcohol
addiction, the employee’s behavior constitutes grounds for dismissal. Where the
employee suffers from alcohol dependence that may be medically classified as a
disease, the principles governing termination due to incapacity arising from
illness shall apply. Under the Labor Law, it is prohibited for employees to
report to work intoxicated or under the influence of drugs, and to consume
alcohol or drugs at the workplace. For the establishment of just cause, it is
not necessary that the employee be an alcoholic or drug-dependent; the mere
occurrence of any of the aforementioned circumstances is sufficient.” [7]
The
Decision, dated 12.12.2005 and bearing the Basis number 2005/36147 and the
Decision number 2005/39144, of the 9th Civil Chamber of the Court of
Cessation reads as follows;
“…
while it is prohibited for employees to arrive at the workplace under the
influence of drugs, merely arriving at work having consumed alcohol outside the
workplace is not prohibited. However, if off-duty alcohol consumption results
in intoxication, reporting to work in an intoxicated state is prohibited.
Therefore, an employee who has consumed alcohol but does not exhibit signs of
intoxication cannot be dismissed for just cause under Article 25/II-d of the
Labor Law. If the amount of alcohol consumed off-duty does not affect the
employee’s judgment, behavior, or ability to perform their work normally, mere
alcohol consumption is insufficient grounds for termination. By contrast,
consuming alcohol within the workplace constitutes a sufficient basis for dismissal,
even if it does not result in visible intoxication.” [8]
As
can be seen, under Article 25/II of Labor Law Nr. 4857, the presence of an
employee in the workplace while intoxicated or under the influence of drugs
immediately entitles the employer to terminate the employment contract for just
cause.
Case law of the
Court of Cessation requires that:
- the
employer’s suspicion be concrete and serious, and
-
the incident be supported by objective evidence.
“Based
on witness statements and the plaintiff’s own testimony recorded at the Public
Prosecutor’s Office, it was established that the employee arrived at the
workplace under the influence of alcohol. Pursuant to Articles 25/II-d and 84/1
of Labor Law No. 4857, reporting to work intoxicated, despite prior warnings,
entitles the employer to terminate the employment contract for just cause.
The
employer exercised the statutory right of termination upon the employee’s
voluntary arrival at the workplace in an intoxicated state. Therefore, in the
case of justifiable dismissal, the claims for severance and notice pay should
have been rejected; establishing a judgment in favor of the employee based on
an erroneous rationale constitutes a legal error necessitating reversal.” (The Decision,
dated 21.06.2010 and bearing the Basis number E.2008/29926 and the Decision
number 2010/19573, of the 9th Civil Chamber of the Court of
Cessation) [9]
Moreover,
the Court of Cessation has emphasized in numerous decisions that the employer
must adhere to the principle of proportionality when exercising the right to
supervise and monitor employees. (The Decision, bearing the Basis number 2014/17359
and the Decision number 2016/9609, of the 9th Civil Chamber of the
Court of Cessation). [10]
We
consider that this approach is also applicable in the context of drug testing.
III. LEGAL LIMITS OF THE EMPLOYER’S RIGHT TO
REQUEST DRUG TESTING FROM EMPLOYEES
3.1.
The Right to Request Testing Based on Concrete Suspicion (Labor Law, Art. 25)
As
is well known, under Article 25/II of Labor Law Nr. 4857, the provision
granting the employer the right to immediate termination for just cause is
particularly significant for our subject, especially with regard to the
following clauses.
Article
25/II-d of Labor Law reads as follows;
“The
employee committing an offense at the workplace punishable by imprisonment of
more than seven days, the sentence for which is not suspended.”
Although
drug use alone does not fall within the scope of this provision, it may be
applied if there is an act at the workplace that constitutes a criminal offense.
Article
25/II-e of Labor Law reads as follows;
“The
employee abusing the employer’s trust or engaging in conduct inconsistent with
honesty and loyalty…”
The
use of drugs in the workplace may invoke this provision, particularly when the
nature of the work—such as driving, operating machinery, hazardous tasks, or
healthcare—necessitates a high degree of trust, which would be compromised.
Article
25/II-ı of Labor Law reads as follows;
“The employee endangering the safety of the
work due to their own volition or negligence…”
In
particular, under Occupational Health and Safety Law Nr. 6331, the use of drugs
that endangers workplace safety should be regarded as justifiable grounds for
termination under this provision.
As
noted above, under Article 19 of Occupational Health and Safety Law Nr. 6331, employees
are obliged to comply with occupational health and safety regulations. Working
under the influence of drugs, when it seriously endangers workplace safety,
should constitute grounds for dismissal from the employer’s perspective.
As previously
noted, the Court of Cessation evaluates cases on a factual basis. The main
criteria considered include:
- The nature of
the work
- Whether drugs
were used in the workplace
- Whether a
safety risk was created
-
Whether drugs were brought into the workplace
Accordingly, we
consider that an employer may lawfully request a drug test only if:
- There are
reasonable and objective indications that the employee is under the influence
of drugs,
- Observed
behavior at the workplace endangers safety, and
- The conduct
in question is repeated.
Accordingly,
we argue that such a test request should not be general or indiscriminate, but
rather individual, based on specific disciplinary proceedings, and grounded in
the circumstances of the concrete case.
3.2.
Special Statutory Regulations
In
certain sectors, such as aviation, maritime transport, public transportation,
and security services, special statutory regulations may impose mandatory
testing requirements.
Where statutory
regulation exists:
- The legal
basis for processing personal data under the Personal Data Protection Law (PDP
Law) is established, and
- Explicit
consent may not be required.
We
consider that, under such specific statutory regulations, the employer is
entitled to request drug testing from employees.
3.3. Within the
legal framework outlined above, drug testing:
- constitutes
sensitive personal data, as it involves health-related information,
- requires, as
a rule, explicit consent,
- is subject to
the principles of proportionality and necessity, and
-
poses a legal risk if applied in a general or abstract manner.
However,
we consider that under Article 25 of Labor Law, if there is concrete suspicion
and a specific statutory regulation exists on the matter, the employer may be
entitled to request drug testing.
IV.
CONCLUSION
Drug
testing constitutes sensitive personal data under Article 6 of Personal Data
Protection Law Nr. 6698, as it involves information concerning the employee’s
health. Health data cannot, as a general rule, be processed without the
explicit consent of the data subject. However, paragraph 3 of the same article
provides that personal data concerning health and sexual life may be processed
by persons bound by confidentiality or by authorized institutions and
organizations for the purposes of protecting public health, preventive
medicine, medical diagnosis, treatment and care services, and the planning and
management of health services.
Pursuant
to Article 20 of the Constitution, everyone has the right to demand the
protection of their personal data. Furthermore, under Article 13 of the
Constitution, fundamental rights and freedoms may only be restricted by law and
in accordance with the principle of proportionality. Accordingly, the
employer’s implementation of a general, routine, and abstract drug testing
policy for all employees raises significant legal concerns regarding the right
to privacy, the protection of personal data, and the principle of
proportionality.
Under
Articles 24 and 25 of Labor Law Nr. 4857, which set out termination for just
cause, and pursuant to Occupational Health and Safety Law Nr. 6331, the
employer is obliged to ensure workplace health and safety, implement necessary
measures, and prevent risks. It is particularly evident that, in hazardous and
highly hazardous workplaces, an employee being under the influence of drugs can
create a serious and imminent risk to occupational health and safety. Within
this framework, it is assessed that, in the presence of reasonable and
objective suspicion, the inherently high-risk nature of the work, and adherence
to the principle of proportionality, directing the employee to undergo drug
testing as part of the employer’s occupational health and safety obligations
may be considered legally permissible.
However, it
cannot be asserted that the employer has an unrestricted and direct right to
demand drug testing. Such testing may only be considered legally permissible
when the following conditions are simultaneously met:
- The work
inherently involves a high level of risk,
- There exists
concrete and reasonable suspicion,
- The
principles of proportionality and necessity are observed,
- The
processing is based on the exceptional conditions foreseen in Article 6 of
Personal Data Protection Law (PDP Law), and
-
Health data is processed exclusively through authorized healthcare personnel.
On
the other hand, in certain sectors, such as aviation, maritime transport,
public transportation, and energy—areas involving public safety and high
risk—if a specific statutory regulation establishes a clear and special
normative basis, drug testing may be conducted in accordance with the
procedures and principles stipulated under the relevant regulation. In
workplaces where no explicit obligation exists under the applicable regulations,
the employer’s unilateral internal policies imposing general and mandatory
testing will not suffice for legal certainty. Nevertheless, should a clear and
specific statutory regulation be enacted in the future, testing could
unquestionably be implemented in accordance with the conditions prescribed
therein.
In
our view, the implementation of routine and mandatory drug testing for all
employees is not legally permissible. However, within the scope of occupational
health and safety obligations, and taking into account the nature of the work
and the specific circumstances of the case, a test request based on reasonable
suspicion and in accordance with the principle of proportionality may be
legally defensible. In this context, refusal to undergo such a test could,
under Article 25 of Labor Law, constitutes justifiable grounds for termination.
In
conclusion, the legality of drug testing depends not on a general or abstract
authority, but on concrete risks, statutory grounds and the principles of
proportionality. The balance between the employer’s obligations and the
employee’s fundamental rights must be assessed on a case-by-case basis.
Att.
Gülden MEHMED
References:
1. Constitutional
Court, Application Nr: 2013/1223
2. Constitutional
Court, Application Nr: 2014/18001
3. The Decision,
dated 31.05.2019 and numbered 2019/165, of the Personal Data Protection Board
4. The Decision,
dated 25.03.2019 and numbered 2019/78, of the Personal Data Protection Board
5. The Decision,
bearing the Basis number 2008/18614 and the Decision number 2010/14204, of the
9th Civil Chamber of the Court of Cessation
6. The Decision,
bearing the Basis number 2015/24607 and the Decision number 2017/13319, of the
22nd Civil Chamber of the Court of Cessation
7. The Decision,
bearing the Basis number 2007/31257 and the Decision number 2008/9580, of the 9th
Civil Chamber of the Court of Cessation
8. The Decision,
bearing the Basis number 2005/36147 and the Decision number 2005/39144, of the
9th Civil Chamber of the Court of Cessation
9. The Decision,
bearing the Basis number 2008/29926 and the Decision number 2010/19573, of the
9th Civil Chamber of the Court of Cessation
10. The Decision,
bearing the Basis number 2014/17359 and the Decision number 2016/9609, of the 9th
Civil Chamber of the Court of Cessation
