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Sponsored briefing: COVID-19 and its effects – Frequently asked question in context of labour law

Nowadays, witnessing the heavy effects of Covid-19 (Coronavirus), described as a ‘pandemic’ by the World Health Organization (WHO), on employee-employer relations, we share our evaluations regarding the issues put on the agenda by any employees and employers, here in this article in the form of frequently asked questions.

1. What sort of precautions can be taken in the workplace due to the pandemic?

Enterprises should determine the measures to be taken in the workplace and work areas, take decisions and implement them immediately such as providing and positioning disinfectants, following the hygiene rules and supplying masks through gathering the Occupational Health and Safety (OHS) committees. Necessary precautions should to be taken in terms of hygiene and cleaning, by working with occupational safety specialists and workplace doctors.

It would be useful for the enterprises to inform their employees about the symptoms and prevention methods of Coronavirus and to prepare an undertaking on the prevention methods of the pandemic by way of an announcement.

It would be important for the workplace doctors to keep all employees under surveillance and to make the diagnosis and detection of viruses by increasing the health controls and periodic examinations that should be repeated within certain periods within the scope of the legislation. At this point, employees involved in the high risk group in terms of the Coronavirus should be detected and additional measures for these employees should be applied under the supervision of the workplace doctor.

Attention needs to be paid concerning the employees obliged to travel to countries or cities considered as risk areas in terms of Coronavirus and such employees should isolate themselves for 14 days before returning to their workplaces.

2. What are the points to be considered during the remote working?

Given the importance of social distancing in preventing the rapid spread of the pandemic, it is possible as a precaution to switch employees who are not having a direct physical contribution to the production activity to remote working model. Remote working is the employment relation established in written form and based on the principle in which an employee performs his/her work by carrying out homeworking outside the workplace via technological communication devices.

It is our recommendation to make an announcement at the workplace regarding the transition to remote working, specifying the period and the way of working and then based on this announcement, to receive written consent of the employees as many as possible and to keep these documents in the personal files of the employees.

3. Our employee had an accident during the remote working, could it be considered as work accident? What could be done to prevent such occasion?

The work-related accidents that employees might have during performing their duties at home are also evaluated as work accidents. Although the home environment is not directly considered as a workplace and the employer is not authorised to intervene in this area first-hand, cases such as the occurrence of the accident stemming from the equipment provided to the employees – e.g. while performing remote working, the employee might get caught in the electrical current due to malfunctions in the electronic tools supplied to him/her – are in the realm of possibility; ensuring that such equipments are regularly checked shall also minimize the risks.

Employees should be guided to create a work environment at home, complying with OHS rules and if the consent of the employee is received in terms of the confidentiality of private life, the working environment in the employee’s home should be inspected on-site in respect to compliance with OHS rules.

4. What should be considered in terms of having the employee use his/her leave? What other options could be applied?

One of the methods that could be applied in this period is to have the employee use annual leave. The employer carries the authority of deciding when the employees may use their leave, however, this right of the employer must be used in accordance with the principle of good faith. Accordingly, if your employees have annual leave from previous years as per their seniority, it may be possible to use this accumulated leave. At this point, it will be sufficient for the employers to notify the employee in written form regarding the dates for which annual leave will be used.

Alternatively, administrative leave practice is another option. Although administrative leave is intended for public sector employees, in practice, private sector employers are able to have employees leave without deducting the days from the annual paid leave and without any deductions from their wages. In such practice, employers should notify their employees via written form. Compensatory work could be carried out later for the work not performed due to administrative leave. It would be appropriate to include in the administrative leave announcement that compensation work will be made at a later date. The two-months’ period of compensatory work to be made as of the situation requiring this work was extended to four months with the amendment of the Law on 26 March 2020.

5. Could short-term working be applied if workplace activities cease or working hours decrease?

Briefly, short-time working can be described as a reduction of working time or full shutdown of the workplace (where weekly working hours are temporarily reduced by at least a third or if the workplace is shut down completely or partially for at least four weeks without requiring continuity) in case of existence of general economic crisis, sectoral and regional crisis and compelling reasons. In this practice, employees are provided with income support for the period of non-working. Such period cannot exceed three months however it can be extended up to six months by a presidential decision. Accordingly, the Coronavirus pandemic is included in the scope of compelling reasons and as part of the measures taken against the pandemic; the Turkish Government has announced that employers can apply for short-term working practice.

6. To where and how should short-term working applications be made?

The following steps should be followed for benefiting from the short-term working practice:

(i) To apply to the Turkish Employment Agency (İŞKUR) with a request form stating that the working time in the workplace has significantly decreased or the workplace is shut down due to the general economic crisis, sectoral, regional crisis or compelling reasons and the list of employees who are going to avail of such practice

(ii) The detection that the workplace is affected from above-mentioned circumstances after the compliance inspection made by the labour inspectors.

As part of the measures taken against the Coronavirus, the examination, which is normally made by visiting the workplace, has been changed to review on paper, hence this assessment will now only be made on paper.

In this context, the employers will be able to apply by sending the necessary documents to the e-mail addresses that have been created specifically for the İŞKUR and published on the website of the related authority as of 23 March 2020.

If it is concluded as a result of the application that the employer is affected by force majeure, implementation of short-term working at the workplace is approved. The above-mentioned examination will be completed within 60 days.

7. Is there any payment to the employees while practising short-term working in the workplace?

In the practice of short-term working, the short-term working allowance is paid by the İŞKUR to the employees who meet certain conditions. The daily amount of the short-term working allowance which will be paid by the relevant authority is 60% of the average daily gross income of the employee, calculated based on the employee’s earnings subject to social security premiums in the last 12 months. The monthly amount of the related allowance cannot exceed 150% of the monthly minimum gross salary. In the circumstances that the activities are not completely stopped but the working hours are decreased in the workplace, the abovementioned allowance shall be calculated according to the ratio of the shortened working hours to the full working hours. The short-term working allowance would begin to be paid after the end of the first week of the occurrence of the force majeure event.

During the first week, the employers are obliged to pay half of the daily wages of the employees. Although the general health insurance premiums corresponding to the periods which non-worked/short-worked in the workplace shall be paid by the İŞKUR, the employer is obliged to make insurance statements for above-mentioned one-week period.

8. Which employees could benefit from short-term working allowance?

After the approval of the employer’s short-term working application by İŞKUR as a result of the examination to be made by the Labour inspectors, the following employees who (i) paid unemployment insurance premiums for at least 450 days in the three years prior to the start of the short-term working; and (ii) worked under an employment agreement for the last 60 days prior to the start of the short-term working, can benefit from the short-term working allowance.

Following the existence of the above-mentioned conditions and approval of the application of the employer by İŞKUR, the practice of short-term working must be announced by the employer in a place that all employees could see at the workplace and also the employees who are going to benefit from the short-term working must be notified by the employer in written form.

9. Is it possible to terminate employment agreements in case of short-term working practice?

Employers who benefit from the short-term working practice would not be able to terminate the employment agreements of the employees, except for violations of the rules of ethics and goodwill (Article 25/2 of the Labour Law) due to the amendment of the Law dated 25 March 2020, as long as the short-term working practice is implemented in the workplace. Otherwise, it would not be possible for the employer to benefit from the short-term working allowance.

10. In spite of the fact that they are not entitled to paid annual leave, we have our employees use paid annual leave due to the pandemic. In a possible termination, can we deduct these paid amounts related to this leave from their salary or paid indemnities?

The general view on the issue is, since it is regulated by the law that an employee who has one year seniority in the workplace shall be entitled to annual leave, the employer who has the employee use annual paid leave on his own initiative shall not be able to make any deduction from the wage of the employee. In practice, it is observed that prior to the mentioned advance annual paid leave, the consent of the employees regarding the deduction of these amounts from their wages or indemnities are received, however, the legal validity of such document is controversial.

11. Is it possible to start the collective leave period at the workplace? Can employees who are not entitled to annual leave benefit from the collective leave?

It is possible for the employer to apply collective leave covering all or part of the employees (including the employees who are not entitled to annual leave) between the beginning of April and the end of October. The employer regulates and announces this situation in the manner of showing the expiry of the leave period of each employee.

Since the determination of the annual leave dates of the employees is evaluated within the scope of the management right, the employees should comply with the practice of collective leave between the dates determined by the employer.

Employees who are working part-time or on-call could also benefit from the annual paid leave just as full-time employees, and it is not possible for such employees to be treated differently.

12. Is it possible to exclude some employees from the collective leave?

The employer may declare the collective leave period to be applied for the whole workplace or for a certain part, according to his/her preference. In case of collective leave, it is possible for the employer or employer representative to exclude a sufficient number of employees from the collective leave for compulsory situations such as the protection of the workplace, maintenance, preparation, cleaning or security of the tools, equipment, or machinery in the workplace. However, in any case, if some employees are planned to be excluded from collective leave practice, the situation of the employees who are currently subject of curfew (citizens who are older than 65 years and citizens with low immune systems who have chronic lung disease, asthma, COPD, cardiovascular disease, kidney, hypertension and liver disease and those using drugs that disrupt the immune system) should be taken into consideration as well.

13. Could the situation of one of our employees catching Coronavirus be considered as a work accident? Could the employer be held responsible for this situation? Is it necessary to make work accident notification to the Social Security Institution (SSI) in such occasion?

Having examined the decrees of the Supreme Court of past years, though it might be noteworthy that the view regarding the situation of the employee having a pandemic disease during his/her duty evaluated as an occupational accident, each situation to be encountered should be examined within its own circumstances. In this regard, it would not be correct to evaluate each employee affected by the pandemic within the scope of a work accident. It can only be possible to answer the question of whether it can be definitely determined that the employee is affected from such disease at work or outside the workplace by a doctor . For this reason, as a precaution, a work accident notification may be made to the SSI in order not to be subjected to a penalty or a work accident notification may not be made by taking risks, then, in case of a penalty, it may be claimed that such occasion is not a work accident.

14. The Coronavirus test on one of our employees has been positive, can we terminate the employee’s employment agreement?

If one of your employees is Coronavirus positive, there are two different options for you in terms of termination of the employment agreement;

a) If it is determined by the Health Board that the disease caught by the employee is untreatable and that it is unfavorable for him/her to work at the workplace, the employment agreement of the employee can be terminated on the grounds of justified reason. On this matter, it is accepted by the Supreme Court that an expert report should be received from a full-fledged health institution. On the other hand, it is accepted by the Supreme Court that, even if this situation is determined by the report of the Health Board, the termination of the employment agreement of the employee should be considered by evaluating whether there is another department or position where such an individual can work.

b) In case the period of the disease exceeds the notice period by six weeks (uninterruptedly) according to the employment duration of the employee, the employment agreement could be terminated without notice by the employer on grounds of justified reason (provided that severance pay is paid).

15. Is the pandemic considered as ‘compelling reason’ in scope of the Labour Law?

Pursuant to the Labour Law, in the case that a compelling reason prevents the employee from performing his/her duties at the workplace for more than one week, the employer has the right of immediate termination of the employment agreement.

The reasons preventing the employee from performing must occur around his/her side. The reasons arising from the workplace are not within the scope of this article. For example, closing the workplace is not a compelling reason. However, situations such as disconnection due to natural events such as flood, snow, earthquake, and quarantine due to pandemic disease are considered as compelling reason.

The compelling reasons arising from the workplace (such as closure of the workplace and the reduction of the work) are not within the scope of the above-mentioned article, but they are the reasons giving the employee the right of immediate termination, as regulated in Article 24/III of the same Law.

Therefore, if a situation preventing the employee from coming to work stemming from the Coronavirus occurs, the current pandemic can be considered as a compelling reason. In case of precautions taken directly by the government for the workplace due to the pandemic (for example, the closure of the workplace) since the compelling reason will occur before the workplace/employer, the employee has the right to terminate the employment agreement on the grounds of compelling reason.

16. Is the curfew a compelling reason? Could the employer be held responsible in case of termination under the compelling reason?

As stated above, if there is a general curfew and unless otherwise regulated, there may be a situation affecting employees’ arrival to the workplace for more than one week and so compelling reason shall be arisen. At this point, the employee shall be paid half of his/her daily wage for up to one week during the waiting period in which the compelling reason remains. If the compelling reason lasts more than one week before the employee, the employer can terminate the employment agreement by paying merely the severance pay (in such occasion the employer is not obliged to pay notice pay to the employee).

17. Since the citizens older than 65 years and citizens with chronic illnesses are restricted from going out currently, what steps do we need to take in respect to the employees meeting these criteria?

Starting from the date of 21 March 2020, 00:00, going out is prohibited with restrictions to leave residences, travel in open areas, parks, and public transportation vehicles for the citizens having low immune system and chronic lung disease, asthma, COPD, cardiovascular disease, kidney, hypertension and liver disease and citizens using drugs disrupting the immune system and aged 65 and over. In this context, to ensure the continuity of public service, healthcare professionals, with the exclusion of doctors with cancer patients or patients in line for organ transplants, mayors, provincial directors, social service officers, and other public service providers as well as pharmacists have been brought under exemptions in line with the banning/restriction decisions of the district governorships.

Employees being subject to curfew will not be able to arrive at their workplace. In this context, our above-mentioned explanations about the compelling reason would be valid, the employee must be paid half of the employee’s daily wage during the one-week period in which the compelling reason remains. If the compelling reason lasts more than one week, the employer may; (i) terminate the employment agreement immediately by paying severance pay or (ii) suspend the employment agreement without the obligation of paying wages and reserve the right to terminate the employment agreement immediately as long as the compelling reason remains. When the compelling reason disappears, the employee must work in the workplace as before, and the employer must employ the employee. However, even if the employer has such a right, it is possible to evaluate the suggestions before applying the termination process such as remote working if possible, paid leave, administrative leave, short-term working practice and unpaid leave providing employer’s approval. We are in the opinion that it will be evaluated in favor of the employer in possible proceeding.

18. How could the chronic diseases be detected in terms of curfew?

The enterprises already have obligations regarding regular health checks of the employees as per the current OHS legislation and in practice; in terms of employers complying with these obligations, it is easy to identify employees with chronic diseases.

If there is no information or document relating to the chronic disease detected during the routine checks in the personal file of the employee, in these days, the employees may apply to the employer with a report, prescription or information proving the status regarding his/her disease. In this case, the information and documents submitted by the employee should be kept in the personal file and the related employee should be considered as unable to continue working due to the curfew.

If there is no determination or report concerning the chronic disease of the employee and the employee, despite having no documents proving his/her condition, has applied to the employer with the claim of having a chronic disease, at this point, the mere declaration of the employee in terms of curfew should be taken into consideration, by carrying out a parallel assessment with the aim of taking the curfew decision and paying regard that the main aim is to protect properly the health and benefit of the public. In this case, it is recommended to act in line with the opinion of the workplace doctor as well.

19. In case of compelling reason, is it obligatory for the employer to pay wages to the employee?

In the Labour Law, it is regulated that the employee, who cannot work or be employed due to the compelling reason, shall be paid half his/her daily wage for up to one week. In this regard, the employer is legally obliged to pay only the half of the daily wage for the first week. Of course, if the employer wishes, this period of one week can be extended. If the compelling reason occurring before the employee lasts more than one week, the employer has the following two options:

a) At the end of the half-paid period, terminating the employment agreement by paying the severance pay, accumulated annual paid leave (which has not been used until the time of termination), overtime pay etc.

b) Suspending the employment agreement without the obligation of paying wage and reserve the right to immediate termination as long as the compelling reason remains. When the compelling reason disappears, the employee must work in the workplace as done before, and the employer must employ the employee.

20. We have encountered results such as diminished stocks, prolonged supply processes, problems in raw material procurement, decreased number of projects, employment excess, store closures, and contraction in the sector in which we operate. Are these considered as compelling reason for termination of the employment agreement? On the grounds of these reasons, can we terminate the employee’s employment agreement?

In order for the employment agreement to be terminated on the compelling reason basis, the compelling reason must occur before the other side of the agreement. Therefore, for the termination of the employment agreement by the employer, there must be a compelling reason happening before the employee or his/her side. Since in the mentioned situation the compelling reason would have occurred at the workplace/employer, not at the employee, it would not be possible to consider it as compelling reason. In this case, termination with a valid reason might be evaluated. In accordance with the principle that termination is the ultimate remedy (ultima ratio) in terms of termination with the valid reason, since they can be used as evidence in favor of the employer in a possible dispute, we recommend to take these precautions primarily such as switching to remote working model, offering annual paid leave, applying for short-term working allowance, offering unpaid leave, offering a different position to the employee. Otherwise, the employer may be faced with the risk of a re-employment lawsuit and non-employment compensation and idle time wages in the amount of 4-12 months in total.

21. Can we have the employees use unpaid leave in the workplace due to the pandemic?

It is not possible to have the employee use unpaid leave, without receiving a written consent or demand from him/her regarding the unpaid leave.

22. How should the unpaid leave offer be made and the process be managed? Is it possible to terminate the employment agreement if the unpaid leave offer is not accepted by the employee?

The employer’s offer in respect to unpaid leave must be submitted to the employee in written form. Upon this offer, the employee has six workdays to respond to such offer. If the employee does not respond positively or negatively during this period, the offer shall not bind the employee and unpaid leave practice cannot be implemented. In this context, in terms of unpaid leave application, it is a must to obtain the approval letter within six workdays from the date of the written offer, involving the acceptance of the employee on the unpaid leave within the determined dates and the results of it by handwriting.

It will not be appropriate to include a statement in the offer containing a notification to the employee by the employer, that the employment agreement will be terminated if related offer is not accepted by the employee. However, if the employee does not accept the unpaid leave offer within the six-day period stated above, the employer may terminate the employment agreement with a valid reason by complying with the notification period and by declaring that it is based on a valid reason.

In this case, the employer is obliged to pay severance pay and notice pay in the event of not complying with the notification period to the employee. At this point, we would like to emphasise that the burden of proof relating to the valid reason for termination of the employment agreement in a possible re-employment lawsuit will be on the employer and the court will investigate whether the employer complied with the ultimate remedy principle regarding the termination or not. In such a case, there will be a risk of paying the amount in the range of 4-12 wages before the employer.

23. Should the SSI premium be paid for the employee who is duly left for unpaid leave? Should the employee continue to be provided with fringe benefits (such as fare, food, private health insurance, life insurance, clothing aid, etc.) while he/she is on leave?

In the unpaid leave practice, since the employment agreement is suspended during the unpaid leave period, the employee does not have the obligation to perform his/her duties, and the employer is not obliged to pay their wage and the fringe benefits such as premiums, fare and food.

24. Is the unpaid leave period subject to a time limit? Is the unpaid leave period taken into consideration in terms of seniority?

The unpaid leave practice is regulated in the legislation only in terms of maternity leave and road leave, excluding these cases, there is no explicit regulation in the law regarding unpaid leave practice. The unpaid leave practice is regulated within the mutual agreement of the parties of the employment agreement; in this respect, there is no limitation regarding the unpaid leave period, the parties shall be able to decide on this subject within their own will. However, it would be beneficial to limit the duration of unpaid leave to a reasonable timeframe, for example, if the pandemic is expected to have an effect of three months, it would not be in accordance with good faith to regulate the unpaid leave for one year.

Since the employment agreement is evaluated as suspended during the unpaid leave, these periods are not counted within the working duration and not taken into account when determining the seniority of the employee.

25. Due to the pandemic, enforcement proceedings have been suspended with the Presidential Decree . Will the deductions carried out due to the garnishment from the employee wages continue?

Since it is stated in the related regulation that non-performance of the transactions of legal proceeding and/or party and the garnishment of the wage of employee is not a transaction of legal proceeding or party, in case notification is made before the date of the Circular dated 24 March 2020, the garnishment of the wage of the employee and deduction should continue. Otherwise, there is a risk of incurring complaint from the creditor party of the enforcement proceeding and becoming liable for the debt.

If it is considered necessary by the employee, he/she may request from the enforcement office that the deduction made by yourselves not be paid to the creditor and returned to him/her. In this case, it would be more appropriate that the decision is made by the Enforcement Office. Pursuant to the Circular of the Ministry of Justice’s Directorate of Enforcement Affairs dated 24 March 2020, the payments made to the enforcement offices can be accepted and transferred to the creditors in the cases not calling for preparing an order table in accordance with the enforcement file and being obvious that the rights of the debtor or third parties rights will not be violated. The Circular also regulates that in case of the payment of the enforcement file debt or upon the request of the creditor’s representative, the annotations regarding the seizure and capture can be removed and file closure operations can be performed first.

26. Can the employer terminate the employment agreements of the employees in case that state of emergency is declared in order to prevent the spread of Coronavirus?

If the state of emergency is declared in order to prevent the spread of the coronavirus, the State of Emergency law numbered 2935 shall be applied. Pursuant to Article 11 of the related Law, the employment agreement may only be terminated during the state of emergency in the following situations:

a) Employee’s request (resignation): The employee’s termination of the employment agreement with his own request, in other words, his/her resignation.

b) Situations that do not comply with the rules of ethics and goodwill, health reasons: Although these reasons are stated in the Law No. 2935 as the appropriate conditions for discharges in the state of emergency; the health reasons and conditions not complying with the rules of ethics and goodwill are not explicitly regulated in the State of Emergency Law .Therefore, the conditions not complying with the rules of ethics and goodwill and the reasons for health must be evaluated within the scope of the 25th article of the Labour Law and in case of discharge during the state of emergency the precautions and procedural rules should be carried out as specified in the Labour Law. It will still be necessary to act in accordance with the principle of ‘ultimate remedy’ (ultima ratio) in the event of a termination of the employment agreement with the valid reason.

c) Retirement, expiration of a fixed term employment agreement or termination: People who have fulfilled their retirement conditions pursuant to the related law and entitled to retirement can be discharged if they wish to quit by using their pension right in the state of state of emergency. On the other hand, in cases where there is a fixed-term employment agreement between the parties and the period of the agreement expires, the agreement may terminate even if in the state of emergency.

The employer, wishing to discharge employees for reasons other than those listed in the above-stated article 11 of the law numbered 2935, would have to postpone this discharge process for three months as per the mentioned article. The three-month process is the maximum period and this period may be shortened due to the situation the employer is in.

In summary, although the current State of Emergency Law covers the above-mentioned limitations, it is important for employers to wait for the announcement of the measures from the Ministry in this regard and it is healthier to make evaluations within the scope of such announcements.

27. In the event that the declaration of a state of emergency with the purpose of preventing the spread of Coronavirus, can such occasion be evaluated within the scope of force majeure?

Force majeure is an extraordinary situation that cannot be predicted and resisted, leading to an absolute and inevitable violation of a general norm of behavior or debt occurring outside the activity and operation of the liable or obligor. Natural disasters such as earthquake, flood, fire, and pandemic disease are considered as force majeure and therefore, Coronavirus, which has been declared a pandemic, is also considered to be a force majeure event. The reflection of this situation on the employee-employer relations finds its place within the scope of the compelling reason regulation mentioned above.

It is not possible to consider the mere declaration of the state of emergency as a force majeure. In order to mention force majeure, the pandemic must lead to impossibility of performance. In other words, if the state of emergency is declared but there is no impossibility for performance, the disease shall not be evaluated as a force majeure event. In such occasion, separate and diligent evaluation will be required in each case. If the state of emergency is declared with the curfew, in this case, since the employees will be unable to fulfill their obligation within the scope of the employment agreement, as stated above, it will be necessary to evaluate the termination of the employment agreements of the employees on the ground of compelling reason.

MORAL & PARTNERS

Aslı Pamukkale, Partner

Özgür Güner, Managing Associate

Hande Solak, Associate

Burak Batı, Trainee Lawyer

moral.av.tr/en-US


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