COVID-19’s Impacts on Employment

1. What are the measures to be taken by the employer at the workplace during the COVID-19 outbreak?

Under the duty to protect the employee, the employer is obliged to take occupational health and safety measures and to protect the employee’s health, physical and mental integrity. Also as per the Occupational Health and Safety Act, the employer is obliged to ensure the occupational health and safety of the employees.

In this scope, it is advised that the employer (if exists, by gathering the Occupational Health and Safety Council at the workplace) determines the action plan and measures to be taken during the outbreak, announces them to the employees, ensures that the employees comply with the measures taken and carries out compliance check regularly.

In the Guideline on “Measures to Be Taken by Occupational Health and Safety Professionals at the Workplaces in Scope of the New Coronavirus Outbreak”, published by the General Directorate of Occupational Health and Safety on 25 March 2020, the minimum requirements regarding the use of personnel vehicles, travels, entrance and leave of the workplace, working environment, meetings and educations, and cafeterias and recreational areas have been set forth. In the Guideline, it is stated that the employers must follow the announcements of governmental authorities and take additional appropriate measures that accord with the field of activity being carried out at the workplace, number of employees, working environment and the methods used.

2. Can the employer conduct temperature check on the employees when entering the workplace, or request the employees to provide information as to whether they have COVID-19 symptoms?

As long as the workplace doctor performs such checks, the employer may conduct a temperature check or obtain information as to the symptoms. However, if these personal data cannot be obtained or sustained continuously by the workplace doctor, considering the requirements of the Data Protection Act, it is advised that the employees are provided with an information letter regarding the taking of the relevant data and requested to give explicit consent for processing of their health data.

3. Is an employee having COVID-19 symptoms obliged to report this to the employer?

As per the employees’ duty of loyalty and obligation to not endanger other employees’ health and safety, they are expected to share the symptoms they show with the employer.

It is advised that the employers to implement policies to encourage the employees to that effect and inform the employees regarding Covid-19.

4. Can the employer request the employees to use annual leave during COVID-19?

Under ordinary circumstances, the request to take annual leave should come from the employees and the employer cannot force them to take their annual leave. Considering the extraordinary nature of the current situation due to Covid 19, several scholars opine that the requirement for employees’ request should not apply and the employer may decide to put the employees on annual leave.

5. Can the employer implement collective leave mechanism during this period?

According to the Regulation on Annual Leaves, from the beginning of April up to the end of October, the employer may decide to put all or some of its employees on collective paid leave. In such a case, the employer may opt to exclude an adequate number of employees from the collective leave, for mandatory situations such as protection of the workplace, maintenance of the tools and equipment at the workplace, or housekeeping and security purposes.

6. Can the employer request the employees to use unpaid leave during this period?

Unpaid leave can only apply if the employee and employer mutually agrees upon it. It is possible for the employer to present such offer to the employees; however, the employees cannot be enforced to accept this offer and take unpaid leaves. If the employer insists on putting the employee on unpaid leave, this may be construed as de facto termination of the employment agreement and this would constitute an invalid termination, which would require the employer to pay notice and severance compensation to the employee. Besides, the employee may file a reinstatement case due to the invalid termination.

7. Do the parties have the right of termination at the workplaces that are temporarily closed by administrative order?

In such case, there would be a compelling reason both for the employer and the employee and the parties would be entitled to terminate the employment based on just cause in the end of the waiting period of one-week. As a result of such termination, the employee will be entitled to severance payment.

8. In the event that the workplaces are temporarily closed by administrative order, do the employer’s obligation to pay salaries continue?

The employer is obliged to pay the half of the employees’ salaries each day during the one-week waiting period.

9. What are the requirements for applying to short-time working?

If the working hours are temporarily reduced by least one-third or the activity at the workplace temporarily stops in full or partially for at least four weeks, the employer may apply for short-time working before the Turkish Employment Agency. The Agency will pay a daily short-time working allowance to the employees for a maximum of three months, if it finds the application suitable.

With the Law numbered 7226 for Amendment of Certain Laws, which entered into force on 26 March 2020, more flexible conditions have been provided for benefitting from short-time working allowance, in scope of short-time working applications filed on grounds of compelling reasons arising from the new coronavirus (Covid-19). In this respect, the employee benefiting from short-time allowance must have been working for the last 60 days prior to the beginning of short-time working, and unemployment insurance premium for at least 450 days must have been paid for the employee within the last three years.

However, the employer must not terminate the employment of any employees during short-time working, in order to benefit from short-time working. The only exception to this is termination of employment based on just cause due to cases which are incompatible with moral, good will and similar circumstances.

1. Can the employer request the employees to perform compensatory work?

In the event that the business stops due to compelling reasons or the working hours fall significantly below the ordinary line for similar reasons; the business is suspended entirely; or the employee is provided with a leave other than the contractual or legal leaves upon request; the employer may request the employees to perform compensatory work within the following four-month’ period. Compensatory work cannot be more than three hours with a maximum limit of 11 hours per day. As compensatory work is not regarded as overtime work, the employees are not paid extra for the compensatory work they have performed.

The four-month’ period foreseen for the compensatory work can be increased up to two times by the President.

First published by Gün + Partners, in 03.04.2020

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