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THE FIGHT AGAINST CORONAVIRUS IN THE WORKPLACE: A DATA PROTECTION AND EMPLOYMENT LAW PERSPECTIVE (PART 2)

THE FIGHT AGAINST CORONAVIRUS IN THE WORKPLACE: A DATA PROTECTION AND EMPLOYMENT LAW PERSPECTIVE (PART 2)

This article is one of many articles we have published in relation to the legal implications of Covid-19. Please click here for our “Covid-19 Insights” page and other articles.

Due to the rapid spread of the novel coronavirus (hereinafter simply “coronavirus”) in the past couple of months, many workplaces around the world and in Turkey have implemented a variety of measures. Most of the employers have instructed their employees to work from home and postponed business travels. Besides the private sector, public authorities have also initiated certain measures to enable remote working or to provide administrative leaves for their personnel.

States are also implementing a series of measures to fight the coronavirus pandemic and support the businesses during these difficult times. In Turkey, the Ministry of Internal Affairs has issued the Circular on Coronavirus Measures, temporarily shutting down 149,382 workplaces. Moreover, the President has issued a statement on 18.03.2020, indicating that the government will ease the utilization of remote working and flexible working hours as well as procedures in relation to the short-time working subsidy. Under the Law numbered 7226 on Amendment of Certain Laws, which was published in the Official Gazette dated 26.03.2020, various precautions have been implemented in this respect.

In the second part of our article series, we will review the measures to combat coronavirus in the workplace within the scope of labor law. Nevertheless, we would like to note that the below explanations are intended to provide the general principles under labor law, and these should not be considered as conclusive legal advice as each case should be reviewed based on its own facts and circumstances.

Health Precautions that must be Implemented in the Workplace

Under article 4 of the Occupational Health and Safety Law numbered 6331 (“OHSL”), employers are obliged to implement all measures to protect the health and safety of their employees. Employers must also adapt their health and safety measures to the changing circumstances.

Under article 13 of the OHSL, employees who are exposed to serious and imminent hazards can apply to the Occupational Health and Safety Board (OHS Board) or the employer in the absence of such a board, requesting that such hazards be documented and the necessary measures be implemented. According to the said article, employees are entitled to terminate their employment agreements with just cause in the event the necessary measures are not implemented despite their request. Considering the severity of the coronavirus pandemic in the world and in Turkey, it can be evaluated as a serious and imminent hazard.

Within this context, employers are obliged to implement appropriate occupational health measures to combat coronavirus in their workplaces as soon as possible. A list of precautions published (PDF) by the Ministry of Family, Labor and Social Services are available here (PDF).

Force Majeure Support for Employers: Short-Time Working Subsidy

In the event the work is completely or partially suspended in a workplace due to a force majeure event, employers can apply to the Turkish Employment Agency to receive a “short-time working subsidy”. Under the relevant regulation as well as court precedents, epidemics and pandemics are deemed as force majeure events. Thus, if an employer is forced to completely or partially suspend its activities due to coronavirus and the Covid-19 disease, such employer can benefit from the short-time working subsidy.

Short-time working subsidy is provided on the basis of each employee and includes wage and insurance premium support for qualified employees. With the amendments implemented under the Law numbered 7226 on Amendment to Certain Laws, benefiting from the subsidy has been made easier. Accordingly, for applications submitted until 30 June 2020 due to force majeure events originating from Covid-19, the condition of being employed for at least 120 days has been reduced to 60 days and the condition of payment of at least 600 days of unemployment insurance premium has been reduced to 450 days.

In the event the short-time working application of the employer is approved, 60% of the wage of a qualified employee, up to the limit of 150% of the minimum wage, will be paid to the employee from the unemployment insurance fund by the Turkish Employment Agency for a period that is no longer than three months. The President is authorized to extend the three months’ period up to six months. In addition, the insurance premium payable under the Social Security and General Health Insurance Law numbered 5510 will also be transferred to the Social Security Institution by the unemployment insurance fund during the period the employee receives short-time working subsidy.

In the event the work is completely or partially suspended in the workplace due to force majeure events originating from the coronavirus, it is important that employers apply for short-time working subsidy prior to resorting to unpaid leaves for employees or termination of employment agreements. This subject is evaluated in detail in the following paragraphs.

Workplace Closures due to Coronavirus

Payment of Wages

Can employers mandate their employees to use their paid leave days during the outbreak?

Yes. The current circumstances arising from the pandemic allows employers to request their employees to take a mandatory paid leave within the scope of the employers’ managerial authority.

Employers are also entitled to mandate collective paid leaves for their employees. However, the Annual Paid Leave Regulation stipulates a time limit with regards to collective paid leaves. Accordingly, an employer can mandate collective leaves for some or all employees only between the beginning of April and end of November. In that case, it is even permissible for the employer to oblige the employees who have used all their paid leave days for the current year to use advance paid leaves.

Can employers mandate their employees to take an unpaid leave during the outbreak?

No. Employers do not have the authority to force their employees to take an unpaid leave with a unilateral decision. As unpaid leave would constitute a substantial change in employees’ working conditions, an offer relating to unpaid leave must be made to the employee in writing. Only where the employee gives written consent within six days can such change be binding on the employee. Further, certain criteria must be met to ensure that an employee’s consent to take an unpaid leave is valid. In particular, (i) the offer to take an unpaid leave must rely on a valid reason such as a force majeure event, (ii) the beginning and the end of the unpaid leave period must be specified, (iii) the period of unpaid leave must not be so long as to seriously damage the financial wellbeing of the employee and it must be limited to the necessities of the circumstances, and (iv) the consent of the employee must not be obtained through a simple standard form; instead the employee must be enlightened regarding the reasons and consequences of the offer.

It should be underlined that, prior to offering the employees to take an unpaid leave, employers should consider all alternatives that might be less detrimental for the employees. For example, employers should first apply for the short-term employment subsidy before resorting to the practice of unpaid leave. The Court of Cassation requires1 employers in certain cases to apply for the short-time working subsidy before termination of the employment agreement. It is possible to argue that the same condition should apply in offering employees unpaid leaves.

In addition, under article 40 of the Labor Law numbered 4857 (“Labor Law”), in case employees cannot work due to a force majeure event2,  employees’ salaries can be paid in half for one week within the force majeure period. Our detailed explanations on this subject are provided below.

Is an employer required pay wages to employees if its workplace is temporarily shut down?

The critical point in this question is the source of the reason why work was suspended in the workplace. If the employer decides to temporarily suspend work on its own account or as a result of the recommendations published by public authorities in order to prevent spreading of the virus, such employer’s duty to pay wages will continue. On the other hand, where circumstances exist that qualifies as a force majeure event, such as quarantine in the area of the workplace or the residence of the employer, an official decision of mandatory suspension of work given by public authorities, or necessity to shut down the workplace due to occupational health and safety risks, then article 40 of the Labor Law will apply.

Article 40 of the Labor Law provides that if an employee is not able to work or the employer cannot engage the employee in employment for a period longer than one week due to a force majeure event, the employee will be paid half her/his wage for up to one week within the force majeure period. In the event the force majeure period exceeds one week, the employer will not be obliged to make any further payment and it will be entitled to terminate the employment agreement with just cause as per paragraph (III) of article 25 of the Labor Law. Having said that, termination of the employment agreement should principally be the last resort for the employer, and therefore our view is that the employer should first consider applying for the short-term working subsidy or alternative courses that are less detrimental for the employee.

Termination of Employment

Can employers terminate employment agreements if their workplaces are temporarily shut down?

As per article 25/III of the Labor Law, employers may terminate employment agreements with just cause in case a force majeure event prevents an employee from performing her/his duties for more than a week. In this case, the employee will be entitled to a severance pay if the relevant conditions are fulfilled but will not receive any payment for the notice period. On the other hand, the principle of termination as a last resort should also be taken into account in termination of the employment agreement in such a case. For instance, the employer should consider applying for the short-time working subsidy first.

Can employers terminate employment agreements due to financial circumstances originating from coronavirus?

Financial hardship of an employer due to coronavirus pandemic would not per se constitute a just cause for termination of the employment agreement.

Turkish Labour Law and the Court of Cassation adopts the principle that termination of the employment agreement must be the last resort for the employer3. In this regard, the employer can only terminate the employment agreement if certain conditions are met, and in particular the following:

i. The employer can terminate the employment agreement only if it has applied for and used half wage and short-time working practices. Moreover, the employer should be able to evidence the impossibility of overcoming the crisis despite having implemented measures other than termination such as requesting the employees to take annual leave or offering unpaid leave.

ii. The employer must be able to prove an objective causal link between the financial circumstances and the redundancy of the employee. It must be evidenced that the crisis could not be avoided even if the employer resorted to alternative ways such as mandating the use of annual leave or offering unpaid leave.

iii. The employer must be able to prove that it complied with objective criteria in the selection of the employees whose agreements were terminated.

Can employees terminate employment agreements if their workplaces are temporarily shut down?

As per article 24/III of the Labor Law, an employee can terminate her/his employment agreement with just cause in the event of a force majeure event requiring suspension of work for more than one week. In this case, the employee will be entitled to severance pay but shall not receive any notice pay.

Can employees terminate employment agreement with just cause due to health reasons?

As per Article 24/1/b, an employee can terminate her/his employment agreement without notice if the employer or another employee with whom the employee is in direct contact is suffering from an epidemic. In this regard, the employee can terminate the employment agreement with just cause if such employer or another employee has been infected with coronavirus and if the employee is exposed to the risk of infection. However, the employment agreement cannot be terminated due to health reasons if the infected people are quarantined in the workplace or by the healthcare institutions and thus there is no risk of infection for the employee.

Working from Home During the Pandemic

Can employers mandate teleworking for their employees during the pandemic?

Yes. Employers can request, within their managerial authority, from their employees to work temporarily from home if the nature of the work is suitable. Although Article 22 of Labor Law provides that employers cannot unilaterally implement substantial changes in employees’ working conditions, we are of the view that working from home due to the pandemic should not be interpreted as a substantial change in the working conditions. Changes to the working conditions must be permanent and continuous in order for them to be qualified as substantial changes. Also considering that having employees work from home might be an extension of the obligations of employers under the OHSL, we are of the view that working from home for a temporary period does not necessitate employers to collect consent from their employees.

It should be noted that requesting employees to work from home may not only derive from the managerial right of employers but may also be an obligation considering the current circumstances. According to article 4 of the OHSL and article 471 of the Turkish Code of Obligations numbered 6098, employers must ensure their employees' health and safety in their workplaces. The Court of Cassation states that employers are obliged to implement all measures appropriate for the purpose of the protection of the physical and mental wellbeing of their employees4. For this reason, instructing employees to work from home to prevent the spread of the pandemic in the workplace may be interpreted as an obligation within the scope of the OHSL.

Further, employers must provide any necessary technological means (e.g. computer, telephone) to their employees who are requested to work from home.

Does temporary teleworking qualify as “remote working” under the Labor Law?

The Labor Law defines “remote working” as an employment relationship based on written agreement where the employee performs her/his work from home or outside the workplace through technological means within the scope of the work organization established by the employer. As can be understood from this definition, working from home for precautionary purposes will not be considered as remote working within the meaning of the Labor Law due to the temporary nature of such arrangement.

However, if coronavirus continues to spread and therefore teleworking turns into a long-term or permanent practice for certain employees, working from home may be considered as a substantial change in the working conditions and might be qualified as “remote working” as defined by the Labour Law. In this case, employee consent must be collected and teleworking must be regulated under a written agreement, content of which should be in accordance with the remote working provisions under the Labor Law.

Do occupational health and safety requirements apply in teleworking?

Yes. Employers must evaluate whether conditions and infrastructure at an employee’s home meets the requirements of the work and ensure protection of employees from health and safety risks while working from home.

Accidents that occur while employees work from home might be considered as occupational accidents. However, this does not mean that all accidents that occur at home will qualify as occupational accidents. An accident will be considered as an occupational accident only if there is an appropriate causal link between the work and the accident and if the other necessary conditions of an occupational accident are present.

How can employers supervise their employees in teleworking?

Measures such as continuous surveillance through CCTV or on-site inspection at the employee’s house without prior notice and authorization of the employee would not be deemed lawful. However, employees can be supervised through the technological means used for work (e.g. computer, internet, email). In this case, it is important that employers inform their employees of such surveillance and supervision and comply with the requirements of the Personal Data Protection Law, particularly with the principle of proportionality.

Continuity of Work and Employees’ Adherence to Instructions

Can employees refuse to come to the workplace or to travel due to the pandemic?

Pursuant to the OHSL, employees exposed to serious and imminent hazards can file an application with the Occupational Health and Safety Board or the employer in the absence of such a board, requesting that the said hazards be documented and the necessary measures be implemented. If the board or the employer approves such a request, employees can refrain from working until the necessary measures are implemented. Employees will benefit from all their rights during this period, including their wages.

Employees can also refuse to work when the danger is “unavoidable” without adhering to the procedure mentioned above. Although there is no explicit precedent on this matter, a pandemic and particularly the coronavirus might be regarded as an “unavoidable serious and imminent” danger. Therefore, employees might be entitled to refuse to come to work due to the pandemic for precautionary purposes considering the particularities of the situation. Similarly, employees can also refuse to comply with the instructions given by their employers due to the pandemic (e.g. business travel). Employees can also terminate their employment agreements with just cause if their employers insist on instructions that might lead to a negative health impact.

Employers cannot terminate employment agreements with just cause on the ground that employees are refusing to come to the workplace in cases where employees are entitled to refrain from working due to the pandemic.

Can an employer terminate the employment agreement of an employee who is infected with coronavirus and is absent due to sickness?

The employer cannot terminate employment of such an employee due to her/his infection. However, if the absence of the employee due to sickness continues for more than six weeks plus the notice period, the employer can terminate the employment agreement with just cause.

Decision of the 9th Chamber of the Court of Cassation numbered E. 2009/27271 K. 2009/27272 and dated 20.07.2009.

2 Epidemics are considered as force majeure events as per the decision of the 9th Chamber of the Court of Cassation numbered E. 2017/11091 K. 2019/11043 and dated 15.5.2019.

3 Decision of the 9th Chamber of the Court of Cassation numbered E. 2009/27271 K. 2009/27272 and dated 20.07.2009.

4 Decision of the 21st Chamber of the Court of Cassation numbered E. 2019/867 K. 2019/5527 and dated 26.9.2019.

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