As a global threat, The Coronavirus (COVID-19) affects commercial life as much as individual life.
We would like to evaluate the conditions that we are in and respond to questions and problems posed by the outbreak in the context of labor law. For this purpose, we share the answers of 14 questions that are likely to be encountered.
1. Do Employers Have Responsibility Concerning the Coronavirus Outbreak?
Under the Regulation of Occupational Health and Safety, the employer is obliged to take all measures necessary, provide tools and equipment, and the provision of the organization; including preventing occupational risks and providing information and training to protect the health and safety of the employees. The responsibility of the employer is not only limited by legal legislation, but it also requires taking the highest-level scientific measures that can be reached at the moment. Therefore, it is recommended that necessary information is given by the employer using methods such as hanging the information note prepared by The Turkish Ministry of Family, Labour and Social Services on safety measures to be taken in workplaces due to the new type of coronavirus (COVID-19) outbreak, to places like cafeterias, dormitories, toilets, and notice boards, where the workers can see.
2. Do Employees Have Responsibility Concerning the Coronavirus Outbreak?
According to Article 19 of Law No. 6331, The Occupational Health and Safety Law, employees are obliged to take care of their health and safety and that of other employees who are affected by their acts or doings under the instructions of the employer and the training they received related to occupational health and safety. Therefore, the employees also have obligations such as paying attention to individual cleanliness, following the quarantine periods and notifying the employer when an illness is detected in or around them.
3. Can the Employer Send His Employee to a Meeting to a Country without a Foreign Travel Ban?
Under Article 417 of The Turkish Code of Obligation, while the employer is obliged to take all measures necessary to ensure occupational health and safety at the workplace; the employees are obliged to comply with the precautions regarding occupational health and safety. We believe that the employer should not send employees to overseas meetings due to the current worldwide outbreak.
4. What Is the Employer's Obligation to Employees Who Come from Abroad for Business Purposes in the Past 14 Days?
These employees cannot be forced to work in the workplace. In our opinion, if possible, the employee should be able to work from home during the 14 (fourteen) day quarantine period; if not, the employer should give the employee paid leave. If the employee receives a health report, the usual report procedure will be applied.
5. Is It Possible for the Employee to Refuse to Attend to Domestic Meetings and Business Trips?
Under Article 417 of The Turkish Code of Obligation, the employer is obliged to take measures to protect and respect the personality of the employee in the employment relationship and maintain an order under the principles of honesty in the workplace; in particular to prevent further psychological suffering. We believe that the employer cannot force the employee to go out of the city in cases where it is understandable that traveling out of the city will psychologically harm the employee.
However, in the case that all necessary precautions are taken by the employer and the employee does not fulfill the requirements of the job in a way that cannot be accepted as well-intentioned, despite being warned; the employment contract of the employee can be terminated by applying subparagraph (h) of Article 25/2 of The Turkish Labour Law ("If the employee refuses, after being warned, to perform his duties").
We believe that employers should evaluate carefully whether there is any risk for the employee according to the current situation.
6. Should the Death of an Employee at the Workplace Because of Coronavirus be Notified as a Work Accident?
It will be correct to report the death as a work accident since the death of the insured employee takes place at the workplace.
In the case of a truck driver with H1N1 (swine flu), the 21st Civil Chamber of the Supreme Court of Appeals has accepted H1N1 as a work accident with its 15.04.2019 dated, 2018/5018 E.-2019/2931 K. numbered decision. In this case, the truck driver died of H1N1 following his return from abroad. So it is highly likely that he picked up the virus during duty. In such a case, the defect rates of the parties need to be discussed to consider the employers' obligation of indemnity.
7. Does the Employer Pay Compensation If the Employee Dies at the Workplace Because of Coronavirus?
The evaluation will be required according to the concrete case. If there is a precautionary measure that the employer has to take but has not been taken (Continues to make the employee work even though he knows that the employee is sick, etc.), the obligation for compensation may arise. However, the amount of compensation will be determined by considering the employer's and/or employee's fault regarding occupational health and safety measures. Even if the employer has not taken all the precautions, the employer will not pay compensation if the employee has a serious defect.
8. Does the Employer Have to Shut Down the Entire Workplace, as of Now, Because of the Coronavirus?
There is no obligation at this stage for workplaces that have not yet been officially shut down. However, the Employer is obliged to take all reasonable precautions that can be taken.
9. What Are the Obligations of the Employer If He/She Temporarily Shuts Down The Workplace on His/Her Initiative?
In the case that the employer abides the recommendation and temporarily shuts down the workplace, the main rule is that the obligation to pay the employees wage continues. Since the employer shutting down the workplace on his initiative can't be considered as a compelling reason, the obligation to pay the employees wage continues. However, in this case, we are in the opinion that the employer does not have to pay the employees fringe benefits such as fare, food, etc. which depends on the employee to be present at the workplace or the employees' actual work. Since the obligation to pay wages continues in the case that the workplace is temporarily shut down, there is no need to obtain the approval of the employee,
10. What Are the Legal Rights of The Employer If He/She Has to Shut Down the Workplace Due to Compelling Reasons?
The compelling reason, according to the established jurisprudence of the Supreme Court, is circumstances that occur around the employee and prevent the employee from working by making it impossible (For example, the curfew of people over 65, employees in quarantine, etc.).
Currently, workplaces such as theatre, cinema, show centers, bars, sports halls, Turkish baths, indoor playgrounds are shut down with the Ministry of Internal Affairs Circular. Therefore, there is a compelling reason for these workplaces. Our opinion is that compelling reason rules cannot be applied to workplaces that have not yet been shut down by official authorities.
In this case, Article 40 of the Turkish Labour Law No. 4857 shall be applied. Briefly, the regulation is as, "If compelling reasons occur that cause work to stop in the workplace or prevent the employees from working for more than 1 (one) week, the employment contract is suspended for this 1 (one) week and the employee is paid half salary during this period. ... ".
According to paragraph (3) of Article 25 of the Labour Law No. 4857, "the employer may terminate the employment contract for just reason in the event of a compelling reason preventing the employee from working at the workplace for more than a week." However, we believe that this article should be applied carefully by employers. Employees may apply to the jurisdiction against employers who turn this period into an opportunity, within the framework of the provisions of Articles 18, 20 and 21, claiming that the termination is not under The Turkish Labour Law. Furthermore, we would like to point out that it is possible for the employee to terminate the employment contract for a just reason, according to the 3rd paragraph of Article 24 of the Turkish Labour Law No. 4857, if there are compelling reasons for the work to stop more than a week in the workplace.
Under Articles 24/3 or 25/3 of The Turkish Labour Law, rightful termination for compelling reasons, it is necessary to pay the employee severance pay and unused annual leave. However, notice pay is not paid.
11. What Measures Can the Employer Take on His/Her Initiative?
We believe that evaluations in terms of the continuation of work should be done in accordance with Labor Laws protection of employee, interpretation in favor of the employee, termination being last resort principles, with equitable, objective, and good faith practices for both the employer and the employee. In this context, our opinion is that it would be appropriate for employers to implement the following practices considering the concrete situations in the workplaces, if possible, by following the priority order stated:
- Remote Working (Working from home): Due to the extraordinary period that is being experienced, to the extent that the nature of the work allows, it may be possible for the employee to work from home for a temporary period. However, this is not a vested right; following the end of the extraordinary period, employees must start working at the workplace again. The opinion that the employer can implement remote working without written consent from the employee in this period, is dominant. However, it will undoubtedly be a more accurate approach to put the situation in writing.
- Paid leave: In line with the principle of using paid annual leaves within the year that the employee deserves, it is equitable that the employees use paid annual leave, leaving at least 10 days out for every year of the employees future paid annual leave right (for example, in a way that the next 3 years paid leave cannot be taken) and especially from the past years. In the current situation, our opinion is that within the scope of his/her management right, the employer may make the employee use paid annual leave and the employee does not have the right to refuse.
- Unpaid leave: It can be used regarding the employees' written request and to the extent that the nature of the work allows. However, the employer cannot make the employee use unpaid leave without their direct request and/or malicious intent. Otherwise, it allows the employee to terminate the employment contract with good reason. It is also possible to count this as an employment termination.
- Compensatory work: It is work that is to be compensated by the employee, which he/she hasn't performed due to compulsory reasons or when the time that has been worked is considerably lower than normal working time or the operations have ceased entirely or on the days before or after the national and public holidays or where the employee is granted time off upon his/her request, except for permissions foreseen in The Turkish Labor Law No. 4857, employment contracts and collective labor agreements and legal permissions. The employer who will have the compensatory work done must clearly state the reason for which this work is based on (a significant decrease in work, operations being stopped entirely, etc.) and inform the relevant workers of the date to start work. Compensatory work is carried out within 4 months following the end of the compulsory reason and start of the normal working period in the workplace. (This period has been extended to 4 months within the scope of the latest measures. However, the President has been given the authority to double this period. The law no. 7226, which is the legal regulation, was adopted on 24.3.2020 and not yet published in the Official Gazette when we prepared this article.) Compensatory work cannot exceed 3 hours a day, provided that maximum working hour of eleven (11) hours per day is not exceeded. Compensatory work cannot be done on holidays.
- Short term work: Under Annex 2 of the Unemployment Insurance Law No. 4447, if weekly working hours at the workplace is reduced temporarily or ceased completely due to general economic, sectoral or regional crisis or compulsory reasons, employers can have short term work done by the employees, not exceeding (three) months. The employer must give written notice to the General Directorate of the Turkish Employment Agency (İŞKUR) and collective labor agreement party labor union if any.
- Implementation of Article 40 of The Labor Law No. 4857: Under this article, if compelling reasons occur, which causes the work to cease or prevent the workers from working for more than 1 (one) week, the employment contract is suspended for this period and the worker is paid half salary during the period.
- Unpaid leave: Unpaid leave is a special implementation of the suspension of an employment contract. Especially in times of economic crisis, employers aim to mitigate the negative effects of the economic conjuncture on the business by taking workers on unpaid leave.
- Thus, the Supreme Court also states that the employer cannot go to termination of the employment agreement directly due to temporary setback of acceptance performance, mild measures that can prevent termination should be tried under the principle of termination being the last resort (ultima ratio).
- In the justification of Article 22 of The Labour Law No. 4857, attention is also drawn to targeting the continuation of the contract by making changes in the working conditions of the worker, even if valid just causes are available, "in the presence of certain negative conditions, instead of direct termination of the contract of the worker, by making certain changes in the working conditions, to maintain the business relationship".
- Termination of employment contract: Termination is a situation that can be considered when economic conditions push hard, businesses start to take serious risks, other measures for employees have been taken (such as removing overtime, partial work, a substantial change in salary reduction, paid leave, unpaid leave, etc.) and the situation becomes last resort economically and actually.
12. What Is Short-Term Work and Short Term Work Allowance?
It is an implement which provides an allowance to insured employees for the period that they could not work, up to 3 (three) months (can be extended up to 6 months with President's decision), if weekly working hours at a workplace is reduced temporarily by at least a third of its activities are ceased completely or partially for at least four weeks, without any continuity condition, due to general economic, sectoral, regional crisis or compulsory reasons.
Compelling reasons are periodic situations arising from external effects or situations such as earthquake, fire, flood, landslide, epidemics, mobilization; that are not caused by the employer's administration, that cannot be predicted priorly, as a result, cannot be averted, resulting to temporarily reducing working hours or cessation of the activity completely or partially.
Within this scope, The Turkish Employment Agency (İŞKUR) pays short term work allowance and the General Health Insurance premiums for employees.
The employer must apply to The Turkish Employment Agency (İŞKUR) that working periods at the workplace has decreased significantly or ceased and evaluation to be done by labor inspectors concerning that the workplace has been affected by a compelling reason. Employers can apply for short term work in the electronic and written environment by filling out the short work request form and the list of information about the employees who are to do short term working. The result of the compliance audit of the labor inspectors is notified to the employer by The Turkish Employment Agency (İŞKUR). The employer announces the result in a place at the workplace where employees can see and informs the labor unions party to the collective bargaining agreement if any. In cases where announcements could not be done, workers subject to short term work are notified in writing. The employer whose apply is deemed suitable, updates, and sends the short-term work notification list within the period notified by the Authority.
For the employee to benefit from the short-time work allowance, the employer's short-time work application is to be found suitable with the examination of the labor inspectors, the worker should be entitled to unemployment benefits in terms of the number of days of work and the duration of the unemployment insurance premium (those who have been subject to a service contract for the last 120 days before the start of the short term work, which has paid the unemployment insurance premium for at least 600 days in the past three years) (these periods have been changed to 60 days and 450 days in the Law No. 7226, which was accepted on 25 March but not yet published in the Official Gazette), the information of the worker should be included in the list of those who will participate in the short term working, following the result of the labor inspectors examination.
The following provisional article is expected to be added to Law No. 4447. Accordingly, "TEMPORARY PROVISIONAL ARTICLE 23- For short term work applications made for compelling reasons originating from the new Coronavirus (COVID-19), valid for until 30/6/2020, the provision of fulfilling the conditions of entitlement to unemployment insurance, excluding the termination of the service contract prescribed in the third paragraph of the additional article 2, is to be implemented in the form of having an unemployment insurance premium paid for 450 days within the last three years from those who have been subjected to the service contract for the last 60 days before the short working start date. Those who do not meet this condition will continue to benefit from the short-time working allowance for the period remaining from the last unemployment benefit entitlement, in order not to exceed the short working period.
To benefit from the short-term work implements within the scope of this article, no employee should be dismissed by the employer, except for the reasons set out in the Subparagraph (II) of Article 25/1 of The Turkish Labour Law No. 4857. Applications for short term working allowance made under this article are concluded within 60 days from the date of application.
The President is authorized to extend the application date made under this article until 31/12/2020 and to differentiate the days specified in the first paragraph."
Daily short-term work allowance; It is 60% of the insured employees' average daily gross earnings, calculated based on taking into account the earnings of the employee for the last twelve months. The amount of short-term work allowance calculated in this way cannot exceed 150% of the gross amount of the monthly minimum wage. Within this scope, short term work allowance can be paid between TL 1.752.40 and TL 4.380.99. The short-term work allowance is paid to the employee himself and monthly for the periods that the employee does not work.
13. If the Employee Is Infected with Coronavirus, Can the Employer Terminate the Employment Contract with Good Reason?
Under subparagraph (b) of Article 25/1 of The Turkish Labour Law No. 4857, if Health Board determined that the illness the employee is suffering is incurable and it is incompatible to work at the workplace, the employer has the right to terminate the employment contract for good reason. If it is determined that the illness of the worker reaches an advanced level and cannot be cured, the employer's right of termination will arise. The employer has to pay severance pay.
14. If an Employee is Infected with Coronavirus, Can Other Employees Terminate the Employment Contract with Good Reason?
According to subparagraph (b) of Article 24/1 of The Turkish Labour Law No. 4857, if the employer or another employee, who the employee constantly meets closely and directly, is suffering from an infectious disease or from a disease that is incompatible with the work of the employee; the employee has the right to terminate the employment contract for good reason. The employer has to pay severance pay.
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.