Covid-19, also known as coronavirus, is spreading rapidly worldwide. Not only affecting the people’s individual lives due to its being contagious, it affects their commercial and financial environment as well. It is getting more and more important with respect to employer – employee relationship.
Below you may find a short information note on Covid-19 /coronavirus’ effect on employment relationships within Turkish law perspective.
Under Turkish law, contagious disease is defined as a “disease occurred due to a microorganism or its toxic products, spreading from a person to a person by direct contact with an infected person or through indirect exposure to a vector, animal, product or environment or exchange of liquid contaminated with contagious substance”. As the contagious disease are listed under the regulation and MERS and SARS are amongst them, it would be acceptable to define COVID-19 as contagious.
As a general obligation, an employer must ensure the occupational health and safety in the workplace. The employer must consider work hygiene conditions related to the environment and the personal hygiene habits of the employees when identifying the dangers that exist in the workplace or may be incurred from outside and determine measures. In this context, the employer must pay attention to workplace and employee hygiene in terms of spreading virus. Otherwise, the employer may be imposed an administrative fine.
Another obligation arises from the Occupational Health and Safety Law; the employer must assign a workplace doctor, who is responsible for preventing the spread and immunization for control of infectious diseases, as well as providing necessary hygiene trainings, ensuring that the necessary examinations and surveys are carried out. Therefore, the employer must enable a workplace doctor to carry out these trainings and examinations.
Termination of employment relationship may be necessitated, if coronavirus disease occurs at work or its spread cannot be prevented nationwide or worldwide and so curfew may be declared, which may in mid-long term efficiently slow down or even suspend the commercial activities.
A. Termination by Employer
a. Termination due to employee’s ban from working within the scope of the Public Health Law:
According to Article 76 of the Public Health Law, people who are detected transmitting epidemics to those around him are temporarily banned from execution of his profession until such epidemic perishes. Since those contracted an infectious disease are kept under quarantine as long as the disease continues as a legal obligation, the employment relationship remains suspended during the ban. During this time when the contract is suspended, neither the employee fulfils his obligation to work not the employer will not be obligated to pay salary.
The employer will be entitled to terminate contract, if the duration that an employee is banned from work exceeds the notice period (max. 8 weeks) determined under Article 25/I/(b)-2 of the Labour Law by six (6) weeks. Therefore, employer will be able to terminate the employment contract of an employee who contracted coronavirus disease and is banned from working, if the duration that the employee is banned from working exceeds his notice period by six weeks. The employee will be entitled to seniority compensation, but the duration that the employee was banned from working will not be considered as working time.
b. Termination in the event an employee gets a health report due to coronavirus:
If an employee is exposed to coronavirus, his employment contract will be suspended for the duration of health reports issued by the relevant health institution. During this time neither the employer can terminate the contract with just cause nor can the employee be entitled to salary. That said, if the days with report continuously exceed the notice period (max. 8 weeks) by six (6) weeks, the employer can terminate the contract with just cause in accordance with Article 25/I(b)-2 of the Labour Law. The time when the employment contract is suspended will not be considered as working time, so will not be taken into consideration when calculating the seniority compensation that the employee is entitled to.
c. Termination due to occurrence of compulsory reasons:
According to Article 2 of the State of Emergency Act, extraordinary management procedures may be put into effect due to dangerous epidemics. If the state brings measures and intervenes in the commercial life by limiting entry to or exit from certain sites, evacuating or transferring certain places.
That said, in order to legally assert the effect of the outbreak on both working life and commercial relations, coronavirus should be considered as force majeure. Moreover, the reason put forward in failure of fulfilling obligations should be evaluated whether the elements of force majeure exist on the basis of each case.
If an employee is not able to perform its job due to state’s prohibition of exit from a particular region due to epidemic and this situation exceeds a week, the employer can terminate the contract with just cause by paying the seniority compensation.
According to a Supreme Court decision, the reasons that prevent the employee from working should occur around the employee. Lockdown of workplace is not considered a compulsory reason, but situations such as suspension, blockage of transportation due to natural disasters or quarantine due to epidemics are considered as compulsory reasons.
The employer can terminate an employment contract if the compulsory reason that prevent an employee to work must continue at least one week. The employment contract is suspended for the duration starting from the occurrence of the compulsory reason that prevent the employee from working. According to Article 40 of the Labour Law, employer must pay half of an employee’s salary every day within the one-week period. If the employer terminates the employment contract after the end of one-week period, it will pay the seniority compensation. If the employer does not terminate the agreement, it will not make salary payment after the end of one week until the compulsory reason perishes.
It is worth emphasizing that the compulsory reasons are considered born not at the employer and/or the workplace but at the employee.
B. Termination by Employee
a. Termination due to contracting coronavirus outbreak at work:
According to Article 24/I (b) of the Labour Law, an employee may terminate the employment contract with just cause and request for seniority compensation, if the employer or another employee in the workplace who is constantly working closely and directly contracts an infectious disease. Coronavirus disease must be medically detected for termination with just cause.
b. Termination due to contracting coronavirus outbreak outside the workplace:
According to recent Supreme Court decisions, in order for an employee to terminate the employment contract due to contracting a disease, such disease must be caused by or in connection with the nature of his work. Therefore, as there is no provision under the Labour Law entitling an employee to terminate the employment contract due to his contracting a disease outside the work and in line with the recent Supreme Court decisions, an employee who contracted a disease himself cannot terminate his employment contract with just cause.
c. Termination due to occurrence of compulsory reasons:
According to Article 24/III of the Labour Law, an employee may terminate the employment contract with just cause and without waiting for notice period, if compulsory reasons arise for more than a week in the workplace. In this context, a compulsory cause is an external event that cannot be avoided and cannot be foreseen before. Moreover, the compulsory reason must stop the work in the workplace in order to be considered a just cause for termination. Accordingly, quarantine of the workplace and/or if entry to the workplace is not possible, this will be considered as compulsory reason from the employee’s perspective. The employer may offer a job that is safe and appropriate to the employee who refrains from working. In such a case, the employee is must accept this job as a requirement of his loyalty obligation. Otherwise, the employer may initiate disciplinary action against the employee who violates the loyalty obligation and terminate the employment contract with just cause in accordance with Article 25/II (e) of the Labour Law.
According to Article 40 of the Labour Law, employer must pay half of an employee’s salary every day within the one-week period.
d. Termination based on lack of occupational health and safety measures, as a result of employee’s right to avoid working due to coronavirus outbreak danger:
According to Article 13 of the Occupational Health and Safety Law, employees who are under serious and imminent danger may apply to the Occupational Health and Safety Board or in its absence to the employer to request determination of such situation and taking of measures. In case of such request, the board must convene or the employer must render a decision in this regard and inform the employees of such decision in writing. If a decision that is in line with the employee’s request is rendered, employees may refrain from working until the necessary measures are taken. According to Article 13/2 of the Labour Law, the employee will continue to be entitled to all his rights arising from the contract and the law that form the basis of the employment relationship. Therefore, the employee’s salary as well as the SSI premiums must continue to be paid.
Despite the employee(s)’ request if the employer does not take the necessary measures, the employees will be entitled to seniority compensation and terminate their employment contract with just cause.
II .ALTERNATIVES TO TERMINATION
a. Delay in payment of salaries:
If coronavirus is considered as force majeure in terms of payment of salaries, employers will have the right to delay the salary payments under Article 34 of the Labour Law. That said, the presence of force majeure in terms of delaying the salary is not sufficient, it must also prevent the payment of the employee’s salary.
In such case, employees will not have the right to refrain from working as explained under section I.B.(d) above. In the event of employer’s failure to make salary payments due to presence of force majeure and employees refraining from working due to this reason, the employer will be entitled to terminate the contract with just cause as the employees’ refraining from working due to non-payment of salaries as a result of force majeure will constitute breach of contract.
b. Unpaid leave
Unpaid leave is defined as a custom practice applied resulting with suspension of employment contract when necessities such as reduction of production or complete suspension for a certain period of time are imposed. Accordingly, employers may request unpaid leave in the event of a general coronavirus outbreak. In such case, unpaid leave must be resolved in accordance with Article 22 of the Labour Law related to ‘material changes in the work conditions and termination of employment contract’: the employer must notify the employee of such request in writing explaining the valid reasons and the employee must respond in writing within six (6) business days. If the employee does not respond but complies with employer’s request, such employee is considered to have accepted the material change in work conditions. If an employee notifies employer that he does not accept the employer’s request in writing, the changes in working conditions will not be applicable for such employee.
c. Paid annual leave
According to the Paid Annual Leave Regulation, collective annual leave is an instrument that an employer may apply. Accordingly, the employer can apply for collective annual leave practice with respect to all or a part of the employees for the period between the beginning of April and the end of October.
Other than the collective annual leave practice mentioned above, the employer cannot push employees for paid annual leave, such request must be made by the employee.
d. Paid administrative leave
Employer may in its discretion decide for paid administrative leave.
e. Catch-up due to compulsory reasons
According to Article 64 of the Labour Law, if work stops for compulsory reasons, is suspended before or after national holidays or general holidays or for similar reasons, works in workplace significantly decrease below normal working time or are completely suspended or upon an employee’s request he was allowed, employer may request for catch-up for the off days within two months.
Accordingly, employers may suspend work in connection with the coronavirus outbreak which is a compulsory reason and then request catch-up. In this context, catch-up work will not be considered as overtime or overwork and catch-up cannot be more than three hours a day not to exceed normal working hours and cannot be performed on holidays.
f. Working from home
Although requesting an employee to work from home is a change in work conditions, employer is not required to expect for a response from employees accepting or denying such request. Employer must only notify employees in writing of such request and detail the conditions regarding this new working order. It is of importance that the employee’s rights and essential working conditions are not changed (except for payment of travel allowance). Otherwise, it will be considered as a material change in working conditions and require compliance with Article 22 of the Labour Law regarding material change in working conditions, and so require response from employee on whether or not he accepts such employer’s request.
g. Suspension of activities by applying to short-time work allowance
Short time work is a practice aimed at employees receiving short time work allowance in the event of significant reduction in weekly working hours or temporary suspension of work in whole or in part due to presence of economic, sectoral or regional crisis and compulsory reasons. The working hours at the whole or at a part of the workplace are to be temporarily reduced by at least 1/3 of the normal working hours for a period not to exceed three months or activities in the workplace are to be suspended wholly or partially for at least four weeks.
This practice may be applied in the event of suspension of activities in the workplace due to coronavirus outbreak. Employers who are unable to carry out business activities at the workplace due to coronavirus outbreak, can file a request for short time working to the Turkish Employment Agency and the employee labour union, if any. If the employer’s request is approved upon consideration of the request by the competent authorities, employees must comply with such approval the employer obtained, except for employees who have not entitled to short-time work allowance. If the premium payments to be made to unemployment insurance are not sufficient, such employee may refuse the short-time work decision and terminate his employment contract with just cause.
That said, if short-time work is in question due to compulsory reasons, payments will start after the end of one-week period specified under Article 24/III and 40 of the Labour Law and as stipulated under section I.B.(c) herein and will not exceed the duration of the compulsory reason and in any event three months. Moreover, the short time work period will be taken into consideration in calculation of paid annual leave and seniority compensation.
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