Does Infection by Corona Virus Constitute A Work Accident?
Covid-19 urged countries, including Turkey, to take measures in social life as well as in the judicial system against its adverse effects. As a result, some workplaces have closed down or stopped their activities, either mandatorily or voluntarily. However, despite the pandemic conditions, in specific sectors, employees continue working to meet the fundamental needs of society, to prevent any delay in health services, and to ensure the continuance of production.
Within this article, we evaluated the conditions of employees in front of the Turkish Labour Act, who would be infected by Covid-19 mainly, whether such infection would be interpreted as "work accident" as per the provisions of the Turkish Labour Act.
How is a work accident defined under the Turkish Labour Act?
Work accidents are stipulated in several acts within the Turkish legislation. The fundamental reason relies on the different aspects associated with work accidents coming from social security laws, work health and safety requirements, obligations law, and penal laws. Work accidents and occupational diseased found grounds within the Turkish Occupational Health and Safety Act No. 6331 entered into force in 2012. Thus, they have been separated from the Turkish Labour Act.
A work accident is defined under the Turkish Occupational Health and Safety Act as follows: "A circumstance occurred in a workplace or because of the execution of work causing death or disability to the physical integrity psychologically or physically." The Turkish Social Security and General Health Insurance Act No. 5510 defines a work accident under its Article 13 similarly and in a broader sense.
The Responsibility of the Employer Lies in its Employee Surveillance Obligation
According to the recent jurisprudence of the Turkish Court of Appeals, the responsibility of the employer concerning work accidents lies in the employer's willful misconduct or negligence in fulfilling its liabilities the employer bears as per employment contracts or by law.
The source of the employer's liability arising from the employment contract is the employer's "surveillance obligation" over its employees. Such obligation is coming from Article 418 of the Turkish Code of Obligations No. 6098, Occupational Health and Safety Act, and the related secondary regulations.
According to the above regulations, the elements of the employer's liability emerging from the employment contract are a breach of contract, negligence, damages, and the relation of causality between the Act and the damages. If these elements are combined, the employer may be held liable in connection with the work accident.
Obligations of the Employer concerning Occupational Health and Safety
The Occupational Health and Safety Act and the Occupational Health and Safety Services Regulation stipulate the respective obligations of the employer in detail.
Articles 4 and 5 of the Occupational Health and Safety Act lists the employer's obligations as follows:
- Prevention of occupational risks, taking all kinds of measures including giving training and information, organization, delivery of the required tools and equipment, adaptation of the health and safety measures by the changing conditions, and improvement of the current circumstance;
- Surveillance and monitoring of compliance with the measures taken in the workplace for the occupational health and safety and eliminating any non-compliance;
- Contemplation or ensuring of risk assessment;
- Assignment of work to the employees in compliance with the health and safety conditions;
- Taking of required measures to prevent the entrance of places bearing life danger and unique threat except for circumstances where the employees are sufficiently informed and instructed.
Importantly, it should be duly noted that the employer would not be relieved from its liabilities in case of obtaining outsourcing services from expert persons and institutions outside the workplace, which also would not change the level of employer's liability concerning employees' occupational health and safety. Moreover, the employer would not be entitled to reflect on the employees any increased charges in connection with the aggravated occupational health and safety measures.
The Employer Has to Avoid Risks
Another obligation of the employer is avoiding risks in the workplace. In this respect, the employer has to;
- Analyze unavoidable risks;
- Combat with risks in their source;
- Diligence in choosing the design of the workplaces, working equipment, working conditions and production methods to ensure the adaptation of the workplace to the employees, particularly, prevention of adverse effects of monotonous working and production speed on the health and safety, if not prevented to diminish the same;
- Adaptation to the technical developments;
- Replacement of endangered with no danger or less dangerous;
- Development of sustainable and general prevention politics covering all the effects of the factors related to technology, working organization, working conditions, social relations, and working environment;
- Providing appropriate instructions and training to employees.
Is Covid-19 Occupational Disease or Work Accident?
The framework regulations and laws laid out above constitute the basis of our evaluation as to whether Covid-19 could be interpreted as a work accident. Since Covid-19 is causing a viral disease, it can be argued that an outside effect exists beyond the employee's intention. Within this period, employees share the same environment in public vehicles by which they commute between their homes and workplaces, in offices or construction sites where they perform their works, in meetings, they attend upon instructions of their Employers and similar circumstances. Thus, bringing up an argument that a work accident has occurred while the employee's performing of its work upon instructions of its employer is only complete if other conditions sought by law have also come up.
In order to argue that a work accident has occurred, another condition sought by law is an injury caused on the employee's body, which resulted in the loss of workforce. As we have publicly become aware by scientists, Covid-19 has a considerable capacity to cause damages to the lungs of a human body. For instance, if the employee got infected, s/he will lose the workforce as a consequence of its breathing incapacity, which will lead to a work accident. The same result shall preliminarily apply in case of a death.
Hence, recently, in the circular distributed by Provincial Health Directorates to hospitals and other health institutions with the heading "Coronavirus [Covid-19] Work Accident Notification", it has been proclaimed that diagnosis among health workers' infections by Covid-19 started and doctors diagnosed such disease on the concerned health workers have to put a mark on Medula system underneath the work accident notification. This clearly shows that administrative bodies interpret any infection of health workers by Covid-19 as a work accident.
The Most Frequently Asked Question: How are the competent courts interpret the above approach?
There is not any single jurisprudence yet interpreting the reflections of Covid-19 on workplaces. Therefore, it is a shared curiosity about how the competent courts' approach to such disease will be. However, there is an established jurisprudence awarded by the Turkish Court of Appeals in a similar social disaster, although its results had less negatively affected social life.
Where an employee had lost his life because of Influenza [H1N1], the Turkish Court of Appeals had held the Employer liable quoted from the related jurisprudence below:
"The plaintiff's deceased being a lorry driver drove to Ukraine for an expedition on 26 November 2009. The deceased entered Turkey on 11 December 2009. The Forensic Medicine Institute Report stated that the incubation period of Influenza varied between 1-4 days. In case, complaints of the deceased in his application to the hospital on 13 December 2009 constituted initial symptoms of Influenza; the deceased may have got infected thereby 1-4 days before his application. Thus, it is understood from the above report's scope that the plaintiff's deceased got infected during his expedition to Ukraine upon which he died on H1N1 diagnosis, which should be interpreted as a work accident" [21. Chamber of Turkish Court of Appeals 2018/5018 E., 2019/2931 K. 15 April 2019]"
In this context, a work accident may occur if Covid-19 would infect an employee during the fulfillment of an employee's work upon instructions given by the employer.
Final Remark: Employers have to take any kind of measures to protect employees.
Indeed, complete control may not be accomplished despite taking every kind of measure by employees and employers against the spread of Covid-19 because there are still severe doubts about how the treatment of Covid-19 can be achieved and its infection can be prevented. However, despite such fact, employers have to take all kinds of measures including but not limited ensuring use of masks by employees, giving such masks for free, regular disinfection of working environments, increasing awareness of the disease among employees, and informing them properly as part of the employer's surveillance obligation. Otherwise, employers may incur damages on the side of employees in connection with employers' objective diligence liability and level of negligence.
Originally published 09 May 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
