COVID-19, emerged in China and spread to almost all countries of the world that is called as a global pandemic by WHO has been identified in our country as well. In pandemic cases, the legal dimensions of employer-employee relations and occupational health/safety measures are essential for our business life. Overall information on coronavirus and measures to be taken within the framework of the legislation are outlined below.
I. Concept of infectious disease
Infectious disease is defined as a disease that is transmitted from person to person through direct contact with an infected person or indirectly such as exposure to a vector, animal, product or environment or through fluid exchange contaminated with the infectious substance, resulting from a microorganism or its toxic products within the “Infectious Diseases Surveillance and Control Principles Regulation” and the infectious diseases required to be notified are included in Annex I of the regulation.
The Public Sanitary Law no.1593 imposes a "prohibition on employment" to those suffering from one of the contagious diseases. Despite infectious diseases are mentioned as a reason for termination in Article 24 of the Labor Law no.4857, the definition of infectious disease has not been made.
Since new virus outbreaks that may be called as pandemics are now frequently seen, lists of outbreaks within the legislation may become outdated. The World Health Organisation or ministries of health may be announcing whether a disease is contagious or not. In that context, since coronavirus is considered a pandemic/infectious disease, the “employment” of those suffering from this disease are prohibited.
II. Obligations in terms of social security/occupational health and safety
As per the Article 4 of the Occupational Health and Safety Law no. 6331, titled as “the general obligations of the employer”, the employer is required to ensure the occupational health and safety of the employees. In this context, the employer is liable to take all sorts of precautions and to organize including prevention of risks, training and providing information. The employer cannot reflect the cost of the measures to the employees while taking these measures related to occupational health and safety.
Pursuant to the Article 21 of the Social Security and General Health Insurance Law no. 5510 titled “Responsibility of the employer and third parties in terms of occupational accidents and diseases”, if the occupational accident and occupational disease has occurred as a result of the intent of the employer or an act contrary to the health protection and occupational safety legislation, payments made or to be in the future by the Social Security Institution to the insured or beneficiaries and the sum of the initial cash capital value at the starting date of the endowment shall be paid by the employer.
Therefore, the illness of an employee diagnosed with COVID-19 which should be considered a disease under usual circumstances may be considered as an occupational accident if it is originated from the workplace and this is detected. The costs that may arise under this case (monthly treatment costs, recourse compensation, etc.) may be quite heavy for employers.
III. Termination of employment in case of a pandemic
Since it is a legal requirement to keep the infected under quarantine as long as the infectious disease continues, the employment relationship remains suspended during the prohibition of work (Public Health Law m.72, m.73).
In our opinion, as long as the absenteeism periods indicated in m.25 / I-b, 2 of the Labor Law are not exceeded (the right to terminate the employment contract for the employer without notification arises after the specified conditions exceed the notification periods in article 17 by six weeks according to the employment term of the worker at the workplace) the fact that the worker cannot go to work due to the prohibition of employment does not constitute a justified or valid reason for the termination of the employment contract.
Within the Article 24/I of the Labor Law no.4857 titled as “The worker’s right of immediate termination for justified reason”, whether or not the duration is determined, if the employer or another worker with whom the worker constantly meets closely and directly is infected with a disease that is contagious or incompatible with the job of the worker, the worker may terminate the employment contract before the deadline or without waiting for the notification period.
Since infectious disease is a medically understandable issue, it is necessary to determine whether a disease is contagious or not by an attending physician. Within the Article 24/I-b of the Labor Law, any infectious disease of the employer or another worker with whom the worker meets closely and directly can be regarded as the reason for rightful termination for the worker without any discrimination. Within the Article 24/I-b of the Labor Law, it is not the disease that the worker is caught; it’s the disease that is contagious or incompatible with the job of the worker that the employer or employee he constantly meets closely and directly is caught.
In the Supreme Court decision dated 16.5.2007 on whether an infectious disease in which the worker himself was caught will cause a rightful termination for the worker or not according to the provisions of Article m.24/I of the Labor Law, it was not justified for a worker who was a carrier of hepatitis B to terminate the employment contract himself. However, in a later decision of the Supreme Court Assembly of Civil Chambers dated 13.2.2008; it was concluded that a worker who is a carrier and patient of Hepatitis B working in the food industry may terminate his employment contract with a valid reason.
Pursuant to the sub-clause (lll) within Article 25 of of the Labor Law no.4857, if a compelling reason arises that prevents the worker from working for more than a week in the workplace, the employer has the right to terminate immediately. The reasons that prevent the worker from working should occur around the worker. Reasons arising from the workplace and preventing work are not covered by this article. For example, closure of the workplace is not a compelling reason. However conditions such as disconnection due to natural events such as flood, snow, earthquake, and quarantine linked to an epidemic disease are compelling reasons. The compelling reasons arising from the workplace are not within the scope of the mentioned article, but they are the reasons giving the worker the right for immediate termination, as regulated in the Article 24/III of the Law no.4857.
Also, as per the Occupational Health and Safety Law no.6331, “Employees facing serious and imminent danger can avoid working until necessary precautions are taken. Employees' wages in the period when they refrained from working (employer's pay debt continues) and other rights arising from laws and employment contracts are reserved. In the event that occupational health and safety measures are not taken in the workplace, the worker may resort to rightful termination of the employment contract due to the absence of working conditions as per the Article 24/II-f of the Labor Law. In that case, besides the severance pay, the employee also has the right to demand compensation in line with Article 26/2 of the Labor Law.
IV. Measures to be applied
A. In case of a pandemic, excuse leave can only be used at the employer's initiative.
In the legislation, the worker is granted three days of paid leave for marriage or adoption or death of mother or father, spouse, sibling, child, or five days if the wife is giving birth.
In the treatment of a child with at least seventy percent disability or chronic illness, up to ten days of paid leave is granted within a year totally or in parts based on the disease report and provided that it is used by only one of the working parents.
Except for the cases specified in the law, for example due to a pandemic, the excuse leave may only be granted by the employer's own initiative.
B. Annual paid leave-collective leave may be let
Employees can be encouraged to use their annual leave during these periods, taking into account the extent of the outbreak. According to the Labor Law, employers can send all or part of their workers on leave for the period between the beginning of April and the end of October. Therefore, the employer can make the crowded workplace more risk-free by using annual paid leave for some of the employees as of April.
C. Unpaid leave
All other unpaid leaves except for unpaid leaves granted to the worker in Articles 56 (4 days unpaid transportation leave granted to the worker who will spend annual leave in another city upon request) and 74 (Unpaid maternity leave that can be used up to 6 months if the female worker who is on leave due to birth requests at the end of the report) of the Labor Law no.4857 should be used with the consent of the parties.
Therefore, it is one of the options that can be applied in case of necessity and under mutual agreement for workers that do not have paid annual leave right any more.
However, it is recommended to consider this measure after evaluating alternatives such as short work.
D. Rest report can be obtained for suspicious employees
Since the cases of coronavirus have started to increase in the country, it will be a very important measure to keep the employees in quarantine for at least 14 days in their homes for their isolation if there is the possibility of contact with infected people, feeling bad, showing symptoms related to the disease, recently returning from abroad etc. These employees must apply to a physician / family doctor / contractor with SSI for 10 days + 4 days of report. Since employees who have been working for at least 120 days within last year can receive leave allowance from the SSI, they will not have any major losses in terms of wages during the isolation process. Those who work on a daily basis and wages calculated and paid on a monthly basis will be able to receive the leave allowance from the SSI for 12 days of gross wages for the 14 days they are reported.
As a result of an administrative decision made on 17/03/2020, within the context of combating the new type coronavirus (Kovid-19), period of the medical report certified by a single physician which was 10 days previously has been increased to 14 days. Apart from that, citizens from abroad will be able to receive a rest, incapacity report for up to 14 days by a single physician in case of diagnosis of Z03.8 and Z03.9 (illness suspect) and the incapacity benefit will be covered by the SSI. With this arrangement, it should not be understood that everyone employed in the workplace will be given a 14-day rest report at a time if they consult to a health unit. In case the person is suspected of illness, it should only be given by the physician”.
E. Remote working may be an option
Working remote that is regulated in paragraph 4 within Article 14 of the Labor Law (Additional clause: 6.5.2016-6715 / 2 Art.) is a relationship established in writing and based on the principle of fulfilling the work of the worker at home or outside the workplace with technological communication tools within the scope of the work organization created by the employer.
Through including additional provisions for working remotely into the existing contracts by mutual agreement, it will be possible to work from home like this. Since there will be changes in the working principles, it is possible only with mutual will. During the work conducted at home, accidents that may occur during working hours are also considered as occupational accidents.
Therefore, employees must be informed about the requirement of notifying the employer about the accidents that may occur during working at home. OHS training should be provided to employees by employers in the circumstances of remote working as well.
F. (With the workplace doctor/occupational safety expert) Hygiene measures should be increased, international travel should be restricted, collective activities should be postponed and workers should be provided with shuttle services instead of public transport.
G. Compensatory work can be done.
Another measure that can be taken to eliminate service losses that may occur if coronavirus causes an outbreak in the workplace is compensatory work. Pursuant to the Article 63 of the Labor Law no.4857, situations where compensatory work may be done can be grouped under three headings:
- Business interruption for mandatory reasons
- Workplace holidays before or after national and public holidays or working significantly below normal working hours at workplace for similar reasons, full holiday,
- Cases in which the worker is given permission upon his request.
In these cases, the employer can make compensatory work for periods not worked within two months. Compensatory work cannot be more than three hours a day, provided that they do not exceed the maximum working time per day. Compensation cannot be conducted on holidays. Compensatory work conducted in compliance with legal requirements is not considered as overtime (Article 64 of the Law no.4857) and no surcharge is paid for them. The regular fee for that period is already paid in advance or will be paid on time.
H. Short-time working allowance may be resorted.
Short-time working allowance is another tool that can be used to eliminate the financial problems that may arise if the size of the epidemic increases, for employees’ getting part of their wages. In the Law no.4447; it is indicated that “In cases where the weekly working hours in the workplace are temporarily reduced or the work is stopped completely or partially temporarily due to general economic, sectoral or regional crisis and compelling reasons, short-time working may be conducted in the workplace provided that it does not exceed three months.
The compelling reason; covers periodic situations that are not caused ty the employer’s own administration, not predicted, not possible to be eliminated, that result in temporary reduction of working time or complete or partial interruption of activity due to external effects or the circumstances such as earthquake, fire, flood, landslide, epidemic, mobilization.
In order for the worker to be entitled to short-time work allowance, he/she must fulfill the conditions for entitlement to unemployment insurance, excluding the termination of the employment contract. Daily short-time working allowance is the 60% of the average daily gross earnings calculated by taking into consideration the insured's earnings based on premium for the last twelve months.
The amount of short-time working allowance calculated in this way cannot exceed 150% of the gross amount of the monthly minimum wage for workers older than 16, as per Article 39 of Law no.4857. Transactions regarding the transfer of insurance premiums and health services for those benefiting from short-time working allowance are carried out within the framework of the principles set forth in Law no.5510. Payments made as short-time work allowance are deducted from the initial unemployment benefit period. In case of short-term work due to compelling reasons, short-working allowance payments start after a one week period indicated in the clause (III) of Article 24 within the Law no.4857 and Article 40 of the same Law.
You can contact us for more detailed information on the above matters.
Av. Ahmet Sağlı Dr. Hakkı Demirci
Partner, EY Director, EY