A. Introduction
The coronavirus (COVID-19) pandemic constitutes a major problem for the economy and employer-employee relations in Turkey and all over the world. At such a time, it is important to know how the pandemic affects the rights and responsibilities of the employer and the employee. At the same time, it is very difficult for employees and employers to predict how they will come through this, because of the shrinking economy. People tend to do the wrong things in times of crisis. First of all, they can make hasty and wrong decisions in order not to damage themselves. But we should not forget that the law is basically still the same. Although regulatory changes are made according to conditions, like a pandemic, people should not deviate from the basic regulations.
In this article, we would like to cover the problems that employers and employees can face the most because of the pandemic.
B. Assessment in terms of employers
First of all, employers are obliged to provide a safe and healthy workplace for everyone, and protect their employees. For this, the risky points in terms of the pandemic must be identified by the employer and shared with the employees. The question of what the risk factor is must be answered by the employer. For this, it should be determined in which cases the employees can be considered as risk factors. After that, the employer should receive a statement from his employees that they can carry risks. It should not be forgotten that the employees have to inform the employer that they are at risk because of their duty of loyalty.
Another important issue for the employer is the situation of coming to the workplace. According to the legislation, employees must act in accordance with the employer’s instructions and have to carry out the work they have agreed. In very exceptional cases, an employee can avoid performing the given work. If a virus is detected in a person working at the workplace, employees can first request that this risk be removed. In such a situation, employees may not come to the workplace. However, the employer still has to pay the salary.
The employer can instruct their employees not to come to the workplace until the risk disappears. In short, the employer can always give unilateral leave to all employees. However, this permission can only be given with paid leave, not as unpaid leave. Otherwise, violation of right arises for the employee.
Another significant point: are there any legal obligation for the employer to notify the relevant health organisations when the virus is detected in the workplace? The employer does not have such an obligation. The employer is obliged to ensure that the workplace is healthy and safe for the employee. However, when there is a suspicion of risk, the employer should contact the workplace doctor or the relevant healthcare provider to take the necessary measures.
C. Assessment in terms of employees
Employees worry about their work even more than employers do, due to unpredictability of the situation, fear of losing their jobs, financial difficulty or future anxiety. As a matter of fact, they cannot be said to be wrong. Employers have the right to make the final decision regarding their work and operations. However, the situation of employees is down to the employer’s decision. The employees feel a deep uncertainty about whether or not they will keep their jobs. In addition, employees may feel pressure to work flawlessly and this comes with a high stress level, causing conflicts and panic in the workplace.
Considering the other side of the coin, although employers have the right to choose staying at home, employees’ situation depends on the employers’ orders. This prompts employees to make mistakes under stress and panic. For instance, not going to the workplace without permission, lying to stay at home, trying to get fake health reports, etc. Thus, the trust relationship between employers and employees may be damaged. To refrain from such a situation, it is important to be honest and understanding.
During this pandemic, schools and kindergartens may be closed. Those who have infants may have difficulties regarding taking care of their children. In such cases, employers should show tolerance to these employees even more so. Giving permission to one of the parents to work from home may be a solution.
D. Evaluation under Turkish labour law
During this pandemic, there will be possible changes to working conditions. Accordingly, we will evaluate these possibilities herein under Turkish labour law by explaining rights and responsibilities of both employers and employees.
1. Workplace
During this pandemic, an employer may choose to continue its operations from its usual workplace, unless there is a lockdown decision taken by the government. In this case, employees are liable to go to the workplace and keep working as usual. However, employers are responsible for taking all necessary precautions to protect employees and employees should follow the employers’ instructions. Employees are obliged to notify the employers if they are sick according to the duty of loyalty. On the other hand, they cannot be forced to disclose other employees’ COVID-19 symptoms. To clarify, the employers cannot appoint someone (like a manager) to follow the employees and check whether they have any symptoms (such as coughing) and report these symptoms to the employer. Moreover, employers cannot force an employee to pass a medical examination due to privacy issues.
Furthermore, employees cannot be forced to travel somewhere coronavirus has spread virulently. In addition, employers can refuse to attend meetings where there is a predictable risk.
2. The home office
An employer may switch to a home office system until this pandemic has passed. In this case, it is suggested they specify working conditions and policies for home working, as well as provide adequate technological infrastructure. It is also important to take measures and inform employees regarding occupational health and safety while working from home. According to the nature of business, some cases may be deemed as occupational hazards. The responsibility of employers in such cases is to inform their employees.
From a different point of view, because introducing a home office system may be evaluated as substantial alteration in working conditions, it is suggested to get written explicit consent from employees. However, considering that this alteration is to protect employees and mitigate damages, it is not obligatory to get such consent.
Another issue is whether or not social benefits (like travel and meal allowance) are payable during home office working. In our opinion, social benefits are deemed a material part of wage; therefore they should be paid during this process.
3. Paid leave
In normal practice, annual paid leave is requested by employees one month before using this leave. However, in the scope of an employer’s right to govern, the employer may request employees take paid leave. Supreme Court decisions also support this. It is worth noting that this period cannot be divided without the employee’s demand and the divided part cannot be less than ten days.
On the other hand, collective paid leave is regulated separately. An employer may send employees partially or wholly on to collective paid leave from the beginning of April to the end of October. This collective paid leave may contain those who have not gained annual paid leave yet due to working terms.
In our opinion, this regulation is applicable by analogy for this pandemic because collective paid leave is used to protect employees and mitigate damages, and also employees will be paid as they deserve to be.
4. Unpaid leave
Sending employees on to unpaid leave is unacceptable for this duration. Employers may offer employees unpaid leave. However, employees are totally free to choose whether or not to accept this offer. If they do accept, explicit, written consent should be taken from the employee. In addition, it is important to note that forcing employees to give this consent would be a violation and the employer will be liable to compensate for the employee’s damages.
5. Short-time working
‘Short time’ working may be decided on in cases where operations are reduced for a material time or stopped completely due to general economic, sectoral or regional crises and compelling reasons, and cannot exceed three months. A pandemic is included in the definition of compelling reasons.
For short-time working, employers should apply to the Turkish employment agency (İŞKUR) and applications are evaluated by labour inspectors. For this term, employees will be paid with a short-time working allowance, if they fulfill the conditions of i) acceptance of employer’s application, ii) having paid 450 days premium in the last three years and been subject to an employment contract for the last 60 days, and iii) being included in the list provided by the employer.
Employees who are not entitled to the short-time work allowance because they do not fulfill the premium payment requirement are paid with their remaining unemployment benefit, where it has been cut due to various reasons (eg starting new employment), if unemployment benefit does not exceed the short-time working period.
Daily short-time working allowance is 60% of the average daily gross earnings calculated by taking into consideration the insured employee’s earnings for the last 12 months premium. The amount of short-time working allowance calculated cannot exceed 150% of the gross amount of the monthly minimum wage.
6. Workplace shutdown
Due to governmental decisions such as quarantine, lockdown, etc, operations may be stopped in the workplace. For this term, the employer does not have to pay wages of employees who cannot work from home due to the nature of the business. However, for the first week, half of the wages should be paid to these employees by the employer.
7. Termination rights of the parties
If such a shutdown stops operations in the workplace for more than a week, both employers and employees will have the right to terminate the employment contract with just cause. In this type of termination, the employee is entitled to severance pay, but is not entitled to the notice compensation.
E. Conclusion
It is very obvious that coronavirus constitutes serious disruption to the general economy, sectors and markets worldwide. This situation severely affects the relationship between employers and employees. Both employers and employees should make an ultimate effort to get through this period with minimum damages. Employers may contribute to this process, having taken necessary precautions and actions to protect their employees and mitigate damages, while employees contribute by following instructions. Employers should consider that when this pandemic is over they will need employees and general legislation will be applicable again. Therefore, it is important not to abandon general law principles protecting employees’ rights owing to the fact that they are the weaker party in labour relations. Last but not least, we recommend employers act within the framework of not only the legal regulations but also humanitarian ethics.
M. Burak Küçükislamoğlu, global managing partner
E: burak.kucukislamoglu@kucukislamoglu.av.tr
T: +90 212 852 8436
Deniz Hançer, managing attorney
E: deniz.hancer@kucukislamoglu.av.tr
T: +90 212 852 8436
