As it is known, Covid-19 virus epidemic, which has been declared as Pandemic, has been affecting our country recently. For this reason, many workplaces had to switch to different practices such as stopping their activities or working from home. This virus epidemic, which can be described as “compelling reason” and “serious and imminent danger” within the scope of the Labor Legislation, will have many important effects in terms of Labor Law. In this article, we will talk about the employee-employer obligations and rights and the measures that can be applied by employers in order to help employers make business decisions.
1) What is the employer's responsibility?
According to the Turkish Code of Obligations, every employer is obliged to take all necessary measures and provide supervision to ensure occupational health and safety in the workplace. The related obligation has also been written in more detail in Article 4 of the Occupational Health and Safety Law No. 6331 titled "General Employer's Obligation".
Occupational Health and Safety Law Article 4:
(1) The employer is obliged to ensure the health and safety of the employees and within this framework;
a) It works to take all kinds of precautions, including prevention of professional risks, training and information, to organize the organization, to provide the necessary tools and equipment, to adapt the health and safety measures to changing conditions and to improve the current situation.
b) It monitors and controls whether the occupational health and safety measures taken in the workplace are followed and ensures that non-compliance is eliminated.
c) Conducts or makes risk assessments.
d) While assigning duties to the employee, it takes into consideration the suitability of the employee in terms of health and safety.
e) Takes the necessary precautions to ensure that employees, other than those given sufficient information and instructions, do not enter places where there is vital and special danger.
In this context, every employer will be obliged to provide medical control within the workplace and to pass the practices he/she deems reasonable, including training and information. Many practices envisaged by the Labor Law Legislation, such as unpaid leave/compensatory work/working remotely, which we will examine in detail in our article, will be useful for managing such a process.
2) What should be done if the employer is not taking the necessary measures?
In accordance with the Article 13 titled “Right to Avoid Working” in the Occupational Health and Safety Law, the employee may apply to his employer to take necessary measures. The employer must decide immediately against this request.
In such a situation, after making the employee application, until precautions are taken/if no precautions are taken, until the danger is over, the employee may not go to the workplace until the danger ends and he can avoid working. The wages of the workers in the period when they refrain from working and other rights arising from the laws and employment contracts will be reserved.
It should be noted, however, that the right of the worker to refrain from working is not unlimited. In every concrete case, the worker must be able to prove the “serious and imminent danger” he has experienced and whether he/she has applied to the employer. It must be proved by the employer that the necessary precautions are taken against the employer's application.
As a result of the employee exercising his right to refrain from working, the employer can go to terminate the employment contract. In such a case, if the employee exercising his right to refrain from working is found right by the court, the worker will be entitled to severance pay.
3) Can work be done from home during the virus epidemic?
Distance working is regulated in the 14th article of the Labor Law titled "Working on Call and Working Remotely". Pursuant to Article 14 of the Labor Law, the employee can fulfill his business debt outside the office or at home, using technological communication tools. However, the employer must notify this situation in writing to the employees and establish the necessary organization.
Since there are compulsory reasons, the employee will not be able to object to this practice. But it can still be argued that the working conditions have been changed in the following process without written permission. For this reason, it will be important for the proof that employees have written approvals (by e-mail, message, announcement, etc.) that they show that they temporarily accept working from home under the same conditions
It is important to note that the working conditions should not be changed during the work from home, both for the employer and the employee. It is worth remembering that during the period when the worker is working from home, the obligation to supervise the working hours of the employer and to pay the overtime continues.
4) Is it possible to have a work accident while working from home?
It is controversial whether or not this accident will be considered as a work accident if employees experience an accident at home. Each concrete event will be evaluated within itself.
Normally, the employer must provide occupational health and safety training to the employee in remote work. In this context, it is compulsory to provide training on what kinds of risks they may face while working at home, and what measures should be taken against these risks. However, this will not be possible in case of working from home for a while due to compulsory reasons.
Under normal conditions, if the employer fails to fulfill its obligation to train, accidents that occur even during working from home can be described as work accidents. However, given the extraordinary reasons we currently experience, it is undoubtedly that the employer cannot fulfill his training obligation and is forced to work from home.
We believe that it will be reasonable for the employer to provide only the necessary organization for working from home and notify workers in this process.
5) If the employee wants to use unpaid leave, is the employer obliged to accept this? Can the employer take the employee on unpaid leave? Does the employer have an obligation to pay the insurance premium in the unpaid leave period?
Unpaid leave is an arrangement that the employee and employer can apply by mutual agreement. Therefore, it is not possible for the employee or employer to switch to unilateral unpaid leave application.
The employer is obliged to inform the employee in writing of the decision to leave the employee for unpaid leave. Changes that are not made in writing and not accepted by the employee in writing within six working days do not bind the employee. The application of unpaid leave, which is unlawfully executed by the employer, will be considered as a termination with action and the court will decide on the return of the job after the employee filed a lawsuit.
The unpaid leave application was not regulated sufficiently within the scope of the Labor Legislation and developed in line with court decisions. In the current situation, if the employer goes to stop the job due to compulsory reasons and switches to the unpaid leave application, there is a valid reason for the employer. In this respect, although it can be interpreted that the worker does not have the right not to accept unpaid leave, this issue will be shaped by the judicial decisions that will occur in the future.
In addition, the employment contract is suspended during the unpaid leave period. During this period, no wages are paid to the employee, and no work occurs. Since there will be no such thing as premium day or earnings based on income dependent on social security contributions, there will be no obligation to pay insurance premiums for employees working in unpaid leave periods. These periods will not be considered as working time.
6) Should the employer accept this request if the employee does not want to attend the meetings he/she sees risky?
Yes, under the Occupational Health and Safety Law, the employee is not obliged to attend meetings or trips where he/she is threatened by the reasons mentioned above. The employee can report this request to the employer and refrain from attending meetings or trips, even if it is not accepted. This avoidance will not allow the employer to deduct wage or rightful termination. However, as we mentioned above, the worker must be able to establish a connection between the meetings or travel he/she does not want to attend and the “near and serious danger”.
7) What are the termination rights granted to the employer and the worker in this process?
a) Employer's Right of Termination
First of all, we would like to remind the employer to use methods such as administrative leave, working from home, unpaid leave, compensatory work, annual leave, and if these opportunities cannot be used, the termination should be applied as a last resort.
According to the second sentence of clause b of paragraph 1 of Article 25 of the Labor Law, the employer will be able to terminate the employment contract, if it is determined by the Health Board that the disease in which the worker is kept is incurable. In this case, the worker will be entitled to severance pay, but will not be entitled to notice pay.
In the 3rd paragraph of Article 25 of the Labor Law No. 4857, it is regulated that the employer can terminate the employment contract immediately, in case of a compelling reason preventing the employee from working in the workplace for more than a week. In this case, the worker will be entitled to severance pay. The “compelling reason” included here should not be caused by the employer and has the nature to create force majeure before the state. Although we are of the opinion that the coronavirus epidemic is within this scope, this issue will be interpreted through the judiciary in the future.
b) Employer's Right of Termination
Of the Labor Law clause (b) of paragraph 1 of Article 24 states, “If the employer, his representative or another employee who is constantly near the employee and with whom he is in direct contact is suffering from an infecting disease or from a disease incompatible with the performance of his duties, the employee may terminate the employment contract with a valid reason.” This means that if the employer or another employee working at the workplace is positive for the Corona virus test, the employee may immediately terminate the employment contract for valid reason. Here, the worker must be able to prove that he has to be in close and direct contact during work. In addition, if the worker gets this disease from a place other than work, the worker will not have the right to terminate the employment contract for valid reason.
If the necessary precautions are not taken, the employee may terminate the employment contract for valid reason in accordance with the clause (f) of the second paragraph of Article 24 of the Labor Law due to the absence of working conditions.
According to Paragraph 3 of Article 24 of the Labor Law No. 4857, it is regulated that the employee can terminate the employment contract immediately in case of “compelling reasons requiring the stopping of the work for more than a week in the workplace”. In accordance with Article 40 of the Labor Law, the employee who is not employed for compelling reason is paid a half wage for up to one week in this waiting period. In order for the employee to exercise his right of termination in the said article, the work must stop for more than a week at work and the compelling reason must originate from the workplace, not the employee.
The closure of workplaces due to the virus epidemic is not due to the employee, but whether it originates from the workplace is a controversial issue. Each workplace has different conditions, number of employees/quality of work done, etc. It is evident that it varies on issues. Therefore, whether the epidemic has become a “necessary cause” for each workplace should also be examined.
8) Can the employer take employees on annual paid leave? What are the alternative methods that can be applied to the employer?
The use of annual leave is covered by the employer's right to management. In the context of the coronavirus outbreak, employers will be obliged to use annual leave within the scope of their management rights. For an employee who does not have the right to annual leave, an advance leave method can be used. It may be another option to have employees on paid leave, not counting from annual leave. For this, it will be important to make operational decisions within the workplace.
One application that we especially want to emphasize is compensatory work. Due to the temporary cessation of the activity due to compulsory reasons in the workplace or a complete holiday, it can carry out compensatory work to be compensated for periods not worked within two months pursuant to Article 64 of the Labor Law. However, this period was extended to 4 months as a result of the decision taken in the Coronavirus Evaluation Meeting dated March 18, 2020.
In accordance with the 7th Article of the Labor Time Regulation Regarding the Labor Law, the compensatory work should be within the framework of the following conditions:
- The mandatory reason that constitutes the source is eliminated within 2 months following the start of the workplace,
- When the work is terminated, the total daily work of the employees should not exceed 11 hours,
- The compensatory working time should not be more than 3 hours
-It should not be done on holiday days.
In accordance with the 7th article of the Working Time Regulation on the Labor Law, the employer must state clearly which of the reasons listed in Article 64 of the Labor Law numbered 4857, and inform the relevant employees on which date it will start working. At this point, written approval must be obtained from the employees that there will be compensatory work. An additional wage will not be paid to the employee who does compensatory work, but the employee must have received their wages during the period of non-employment.
9) Is the employee being exposed to an epidemic within the scope of work accident?
In line with similar decisions of the Supreme Court, the employees become infecting Covid-19 virus due to work can be described as a work accident. However, proving where the virus was infected is a rather important issue.
However, if we go through a hypothetical example, We believe that this situation should be counted as a work accident if the test results of the employee sent abroad due to work are positive in the 14-day period after returning from abroad. Apart from this, if it can be proved (eg, as a result of a meeting attended/if the test of another employee turns positive it will be possible to qualify as a work accident. But each event must be evaluated individually.
In the decision numbered 21 of the Supreme Court of Appeals, the plaintiff, who was a truck driver, was sent to Ukraine by his employer on 26.11.2009. Plaintiff has entered Turkey on 11.12.2009 and on 13.12.2009 was admitted to the hospital. The Forensic Medicine Institute reported that the incubation period of the H1N1 virus varied between 1-4 days. Accordingly, if the complaints that plaintiff stated at the time of admission to the hospital were the initial symptoms of the disease, it was stated that the transmission of the disease was 1-4 days before this date. In this concrete incident, the Supreme Court decided that the H1N1 virus was transmitted during the voyage to Ukraine and that the death occurred should be considered a work accident.
10) What is Short Work Allowance? How to Apply?
Short-time working allowance is an assurance that can be applied in cases where weekly working hours are temporarily reduced by at least a third or if the workplace is stopped completely or partially for at least four weeks. Thus, İŞKUR (Turkish Employment Agency) provides income support to the employees for the period they cannot work for not exceeding three months.
In this context, short-time working allowances and Universal Health Insurance premiums are paid. However, in order for the employee to benefit from this payment, it is required to be subject to the last 120 days of service contract prior to the start of the short work and must have paid at least 600 days in the last 3 years.
Applications started as of 23 March 2020 and applications will be made via www.iskur.gov.tr . Here, the list of employees who will benefit from the payment, along with the request form and supporting documents, should be uploaded to the system. After this request, an application is sent to the Ministry of Guidance and Inspection to determine compliance. Applications must be made by filling out the request form and submitting additional documents on the İŞKUR website. The supplementary document is a list of employees who will benefit from this allowance and a managerial decision on short work, if any. If short work ends early, it will need to be notified to İŞKUR. Due to Covid-19, the application has been completely updated and the decision has been taken to complete the entire process online.
In the normal process, the determination of conformity is a period that is performed by performing an on-site examination if necessary, but because of Covid-19, İŞKUR has made an arrangement on its site as follows, shortening the determination process:
• All examinations will be carried out at the Directorate of Guidance and Inspection or Group Presidencies, without going to the location, only through the relevant application documents and annexes and without determining the determination minutes.
• If it is evaluated that there is a deficiency in the application documents during the review process, the employers will be contacted immediately, and the missing documents will be requested to be transferred electronically and the examination will be completed urgently on the basis of documents.
• Documents regarding whether the workplaces are only in this scope will be sufficient in the examination of the conformity determinations made for the workplaces that have been suspended by the Presidency, Ministries or related public institutions and organizations.
• The relevant documents to reveal the situation will be sufficient for the compliance assessment examinations made regarding the workplaces that have been stopped or reduced within the framework of the administrative decisions of the employers.
• A report will be issued by the Ministry of Labor Inspectors regarding the determination of conformity. The aforementioned articles and their attachments will be sent to the Provincial Directorates of our Institution electronically via the address of Kep (registered electronic mail), and their wet signature will be sent later to be kept in the file of the workplaces.
• The eligibility assessment process for the workplaces that have been discontinued by the Presidency, Ministries or related public institutions and organizations, is limited to the duration of administrative savings, and the short-term implementation of administrative savings will also end automatically with the termination of administrative savings.
If the request is approved, it is answered by e-mail. The employers, whose request is approved, update the Short Work Notification List within the period notified to them and send it to the e-mail address (available in the attachment) of the İŞKUR unit they apply for.
11) How much is paid within the scope of the short-time working allowance?
It is 60 percent of the average daily gross earnings calculated based on the earnings of the employee for the last twelve months premium.
Example: For the gross salary of 2.622 TL, allowance is 1.561 TL
!! The amount of short-time working allowance does not exceed 150 percent of the gross amount of the monthly minimum wage.
12) When and how is the payment made within the scope of the short-time working allowance?
For the periods when the employee does not work, the payment is paid to the employee via PTT Bank and on the fifth of each month monthly.