COVID-19 Pandemy - Assessment of Employee - Employer Relations
Regarding the Coronavirus (Covid-19) disease which spreads very fast each passing day and takes hold of the world, several measures have been started to be taken with the first case seen in Turkey. As part of this, it has become compulsory to take measures in terms of not only medical but also social, economic and legal perspectives in order to restrict further spread of the pandemic and to cope with it. As one of the compulsory measures is related to the workplaces, where people spend a significant period of time per day, the need has arisen to propose solutions to the problems that employees and employers can encounter.
Since it is required to take preventive measures in entire workplaces as shared usage areas, several employers in private sector either completely suspended or restricted their activities or started studies for introducing the method of telecommuting/working from home for their employees. It is possible for workplaces with technologic infrastructure to conduct telecommuting/working from home, there are questions regarding the situation in workplaces that cannot implement telecommuting model due to the nature of work. Therefore, this information note aims to handle problems arising from coronavirus and to propose solutions within the scope of Labor Law legislation.
Before starting our explanations on the subject, it will be appropriate to present the legal nature of coronavirus pandemic in terms of Labor Law. At this point, it is seen that the coronavirus pandemic should be regarded as a “force majeure event” within the scope of Labor Law, considering the facts that coronavirus was declared as a pandemic with by World Health Organization (WHO), measures including curfews that restrict daily life to a great extent have been taken in several countries, and measures to restrict the spread of the epidemic (including suspension of school year) have been implemented in our country by several public institutions and organizations including the Presidency. Indeed, events such as fire, earthquake, epidemics etc. that occur around the employee -not in the workplace- outside the control of the employee- are accepted as force majeure events in doctrine and in practice[1]. This issue is clearly explained in Article 3/h of Regulation on Short-Term Working and Short-Term Working Allowance with the provision: “Force majeure events refer to periodical situations arising from external effects or causes such as earthquakes, fires, floods, landslides, epidemics, mobility, etc. which are not based on employer’s conducts, and which cannot be predicted and thus are impossible to avert, and result in temporary shortening of working time or complete or partial suspension of operations.” Therefore, it is clear that the coronavirus pandemic is accepted as a force majeure event within the scope of the provisions of relevant legislation and judicial decisions.
- Whether the employee will be paid if the workplace is closed within the scope of coronavirus measures
Coronavirus disease, which is a global pandemic as specified above, is a force majeure event within the scope of Labor Law legislation. Payments to employees that cannot be engaged in work due to the force majeure event is regulated in Article 40 of Labor Law no. 4857. As per the related provision; “The employee who cannot work or who is not engaged in work[2] due to the reasons set forth in subsections (III) of Articles 24 and 25 shall be paid, up to one week, half his wages for each day.” Therefore, in the event that the workplace is closed within the scope of measures taken to prevent the spread of coronavirus, employees who cannot be engaged in work as per the provision of Article 40 of Law should be paid, up to one week, half his wages for each day.
Within this scope, based on the Regulation on Short-Term Working and Short-Term Working Allowance, the employer may make a request to Turkish Employment Agency for temporal shortening of the employment period -not longer than three months- in the whole or part of the workplace by at least one-thirds due to force majeure events such as epidemics, which are not based on employer’s conducts, and which cannot be predicted. In the event that the short-term working request is accepted by the Agency, employees entitled for short-term working allowance are paid short-term working allowance for a period not longer than three months. - Telecommuting Model
Considering the coronavirus pandemic, it is seen that engaging the employees in work at home -to the extent permitted by their duty and working conditions- comply with the employers’ liability of protecting their employees. As per Article 14 “Working on Call and Telecommuting” of Labor Law, “Telecommuting is an employment relationship established in written, based on the performance of work by the employee at home or outside the workplace with technological communication devices within the scope of the employer’s business organization.”
As the employment relationship to be established for telecommuting should be in written according to the mentioned provision, rules of temporal telecommuting due to coronavirus should also be defined in written, the telecommuting conditions of employees should be determined, and the necessary working order should be established by the employer accordingly. However, it would be applicable to receive the employees’ written letter of consent stating their acceptance of telecommuting in the relevant period. - Whether the employee can be granted unpaid leave due to coronavirus pandemic
Another decision to be taken within this scope is to grant unpaid leave to the employee. Unpaid leave is a special practice regarding suspension of employment contract. More clearly, it is a type of leave where the employee’s employment contract is suspended during the period of leave, the employee does not work actively and does not receive payment for unworked days. Within this suspension period of the employment contract, the employee shall not work, and the employer shall not pay the salary, supplements and Social Security premiums; however, the employee on unpaid leave shall continue to benefit from healthcare services for up to 10 days. In the event that unpaid leave is granted, the employer shall notify Social Security Institution on missing days during the unpaid leave.
As the method of granting unpaid leave to employees is considered as a material change in working conditions according to Article 22 of the Law, it can be implemented only on condition that the employees are notified in written and their consent is received (mutual consent). More clearly, the consent regarding unpaid leave should be submitted to the employer by the employee in written within six working days. A unilateral decision only by the employer without the employee’s consent shall mean termination of employment contract.
We would like to also state on this issue that it is not possible to deduct the employee’s unpaid leave from annual leave. As per Article 56 of Labor Law no. 4857, “... Other kinds of leave, with or without pay, granted by the employer during the year as convalescent or sick leave must not be deducted from annual leave.”
- Granting Paid Leave/Annual Leave to Employees
Employers may grant paid leave to their employees in the presence of force majeure events. Since this is completely under the employer’s right to govern and initiative according to the provisions of Labor Law, the employees’ consent is not required.
Due to current effects of coronavirus, the government recommends the employers grant paid leave to their employees and make payments for the period of paid leave. However, it is unfortunately not implemented in practice. The working method first implemented in our country after the detection of the disease is shortening of working time, and there are declarations on employers’ decisions for deducting such shortened working times from annual leave.
However, according to Article 56 of Labor Law no. 4857 and the provision of “Other kinds of leave, with or without pay, granted by the employer during the year as convalescent or sick leave must not be deducted from annual leave.” constituting the basis of Article 6. “Annual Leave with Pay” of the Regulation on Annual Leave with Pay, sick leave and convalescent leave cannot be deducted from the right of annual leave. Therefore, it is not possible to deduct the unworked periods due to shortening of a few hours of working time every day from the employee’s annual leave or annual leave payment.
However, as per the provision of “… leave periods may be divided by mutual consent, provided that one of the parts shall not be less than ten days.” in Article 56 of Law, it is possible to grant annual leave of at least ten days during the coronavirus pandemic, upon mutual consent of the employee and employer. Although there are no legal barriers for granting annual leave in this period, which is also under the employer’s right to govern, it would be beneficial to implement this method by explaining the consequences to and receiving the consent of the employee as per the “Principle of Interpretation in Favor of the Employee” dominating the Labor Law. Otherwise, this may be seen as a practice against the employee, and justifies the employee’s termination for this reason.
- Suspension of Operations in the Workplace
If any situation causing danger for occupational health and safety is detected, operations should be stopped in the premises, taking into account the nature of the hazard, until such hazard is eliminated. As per Article 25 of Occupational Health and Safety Law No. 6331, “In case of any situation found dangerous to workers’ life in the premises, working methods or employment, operations shall be stopped in the premises or any part of it, taking into account the nature of the hazard and the part of the premises and the workers to be affected by the hazard, until such hazard is eliminated. In addition, at the workplaces classified as very hazardous, mining, metal and construction workplaces, workplaces where hazardous chemicals are used and workplaces where serious industrial accidents may take place, the operations shall be stopped in case of a lack of risk assessment.”
Conducting compensation works is possible in this case. As per Article 64 of Labor Law, “In cases where time worked has been considerably lower than the normal working time or where operations are stopped entirely for reasons of suspending work due to force majeure or on the days before or after the national and public holidays or upon the employee’s request, it is possible that the employee is granted time off. In this case, the employer should announce that the operations have been stopped between the dates to be declared, the date to commence work, and the dates and number of hours to conduct compensation works. The employer may request a compensation work to be conducted in 2 months for the unworked periods.
Payment should be made to the employees during the unworked period, and the compensation works to be conducted afterwards shall not be considered overtime work. However, compensation works shall not exceed 3 hours in a day, provided that they do not exceed daily maximum working period (11 hours per day). Compensation works shall not be conducted on holidays.”
Moreover, as per occupational health and safety, it would be appropriate to request the workplace doctor to examine the personnel for evaluation and scanning about the disease, and to request the employees found risky to immediately go to the hospital for tests. It should also be noted at this point that it is possible to deduct the benefit for temporary incapacity, paid by the Social Security Institution for unworked days due to sickness, from the employees’ salaries. However, this is left to the employer’s discretion in practice. Within this period, the employer is not obliged to make payment to the employee who is on leave with medical report. Social Security Institution notifications shall be made according to “on sick leave” code, and insurance premiums shall not be paid.
- Termination of Employment Contract with Valid Reason
Termination of employment contracts with valid reason both by employees and employers may gain currency due to coronavirus. These issues are regulated in Articles 24 and 25 of Labor Law. Accordingly;
Article 24/III of Labor Law: “The Employee may terminate the Contract before the expiry hereof or without waiting for the notification period under the following circumstances, whether for a definite or indefinite period:
… III) If a force majeure event arises at the workplace of the Employee and requires interruption of work for more than one week.”
Article 25/III of Labor Law: “The Employer may terminate the Contract before the expiry hereof or without waiting for the notification period under the following circumstances, whether for a definite or indefinite period:
… III) If a force majeure event arises and prevents the Employee to work at the workplace for more than one week.”
It should be noted at this point that, the employees are obliged to pay half-fare to the employees for a waiting period of one week in case of exercising their rights of termination with valid reason as per Article 40 of Labor Law. Moreover, it should be reminded that termination of employment contract should always be used as the last remedy. Therefore, it would not be appropriate to terminate the employment contract before exhausting other options such as granting paid/unpaid leave to employees, conducting compensation works, trying telecommuting system etc.
Within the framework of all these issues; as per related legislation and practices of Court of Cassation, and due to the coronavirus pandemic, which should be considered as a force majeure event, it is seen possible to use the following means: employees and employers agree on unpaid leave, employers grant paid leave to employees, the method of telecommuting/working from home is introduced, compensation works are conducted, short-term working system is conducted temporarily with the approval of Governing Board of Turkish Employment Agency, or the contract is terminated with valid reason. Within this scope, specific assessment of the method to be preferred according to each concrete case would be appropriate.
Best regards,
[1] Yuvalı, Ertuğrul: İş Hukukunda Zorlayıcı Neden Ve Zorunlu Neden Kavramları İle Bu Kavramların İş Sözleşmesi Üzerindeki Etkileri, Kamu-İş 2012, V.12, S.3, p. 16. (General Assembly of Civil Chambers under Court of Cassation 2017/1190 E., 2018/1259 K., 27.06.2018 T.) (Also see Court of Cassation 9th C. C. decision dated 09.05.2016, Basis No. 2016/7175, No. 2016/11446/ Court of Cassation 22nd C. C. decision dated 04.02.2014, Basis No. 2013/2499, No. 2014/1389/ Court of Cassation 9th C. C. decision dated 29.05.2014, Basis No. 2012/10932, No. 2014/17580/Court of Cassation 9th C. C. decision dated 20.11.2018 , Basis No. 2016/14140 No. 2018/21011.
[2] Article 24/III of Labor Law: “The Employee may terminate the Contract before the expiry hereof or without waiting for the notification period under the following circumstances, whether for a definite or indefinite period:
… III) If a force majeure event arises at the workplace of the Employee and requires interruption of work for more than one week.”
Article 25/III of Labor Law: “The Employer may terminate the Contract before the expiry hereof or without waiting for the notification period under the following circumstances, whether for a definite or indefinite period:
… III) If a force majeure event arises and prevents the Employee to work at the workplace for more than one week.”
