Covid-19, which came to the world’s agenda in December last year, has affected many areas of our lives. The outbreak in Wuhan, China, has spread all over the world. It became a global crisis after the World Health Organization declared a pandemic.
In our country, the first case started to be seen with the declaration of the pandemic made by the World Health Organization. With this announcement, the signals of the crisis that will be experienced and is experiencing globally are given. The effects of covid-19 epidemic disease in our country have become more and more palpable day by day; has increased rapidly since the day the virus was seen. The epidemic has spread to many areas. In this sense, the area where the most change and interaction is seen is undoubtedly business life. Working conditions have entered into a number of difficulties and unknowns for both the employee and the employer and many questions and problems have entered into in this field.
In this article, we will evaluate the effects of Corona virus on our working life, the obligations of the employer and workers’ rights.
- Covid-19 Epidemic’s Place in Turkish Law
The evaluation of the legal nature of the Corona virus outbreak, which has put the world on red alert, in terms of Labor Law, will be appropriate in terms of this article. Curfew sanctions have been imposed by countries where the World Health Organization has declared a pandemic. It has seriously disrupted the functioning of everyday life. Considering the measures taken by our government, the Corona virus outbreak should be considered as the ‘Compelling Cause’ regulated under the Labor Law.Events occurring around the worker and developing against the will of the worker such as floods, earthquakes, fires and epidemics are considered as compelling causes.
This situation is in article 3/h of the Regulation on Short Work and Short Work Allowance; “Compelling reason: Periodic situations or situations such as earthquakes, fires, floods, landslides, epidemics, mobilizations that are not caused by the employer’s own referral and administration, which cannot be predicted, which cannot be eliminated as a result, resulting in a temporary reduction of working time or a complete or partial cessation of activity.”
- Short Work and Remote (From Home) Concepts
Short Work; not exceeding three months; temporarily in the entire or part of the workplace; it refers to a reduction of at least a third or a complete or partial cessation of activity for at least four weeks without the condition of continuity. The conditions in which short work can be done are clearly regulated in the provision of the law; General Economic Crisis, Sectoral Crisis, Regional Crisis and Compelling Reasons. If the application to the institution for short work allowance is approved, the workers who are entitled to short work allowance from the employees will be given a monthly short work allowance between TL 1,765.80 and TL 4,414.50 from the unemployment insurance fund according to the prime earnings averages of the last 12 months. The duration of the short working wage is not exceeding 3 months, but the working time is as long as the working time. Since short working conditions are an institution regulated by law, the consent of the worker is not required in the short working practice. In this context, short work allowances and insurance premiums are paid to the workers.
Remote (Home) Work; Declaring that there is no concept such as ‘Working From Home’ in our law, “Remote work” in article 14 of the Labor Law No. 4857 titled “Working on Call and Working Remotely”; it is the business relationship established in writing on the basis that the employee performs his/her work at home or outside the workplace with technological communication tools within the scope of the business organization created by the employer.” Section 14 of the Labor Code. As the article shows, remote working is an institution that occurs as a result of the agreement between the parties and does not include the necessity.
In order for the Remote Work institution to be implemented, additional protocols with appropriate will statements of the parties on this issue must be arranged. The newly edited protocol should include all the details of the new working system; the written approval of the worker should be obtained. The applicability of the agreement is also important. In the study to be carried out remotely (from home) due to corona virus; the work to be done should be suitable for performance. There is no possibility to implement remote working institution in workplaces that require actual work in the workplace. In this case, the permit institution may come up.
- Can the Employer Give The Employee Unpaid Leave?
This issue should be evaluated from different perspectives for the employee and the employer. Due to corona virus, the employer can offer unpaid leave or the worker can request unpaid leave.
If the Worker Requests Unpaid Leave; The employee’s unpaid leave is the 74th amendment of the Labor Code. Specially arranged in the article. Although this article provision is mostly regulated with women and children in mind, since there is no gender discrimination in terms of such duties in today’s conditions, the continuation of the law states that “.. The provisions of this article apply to all kinds of workers who work with the employment contract and who are or are not covered by this Law.” In this case, the workers can take unpaid leave at any time, provided that the approval of the employers is obtained.
If the Employer Offers Unpaid Leave; Section 22 of the Labor Code. In order for the employer to make fundamental changes to the employment contract according to the provision of the article; this situation should be reported to the worker in writing and the written consent of the worker should be obtained within six working days. Otherwise, the transactions carried out do not bind the worker but are considered as a reason for unfair termination. In the case of unpaid leave, the business relationship ends because the core elements of the business relationship, the work and wage elements, are suspended. Since unilateral dismissal of the employee without the approval of the employer; The worker will be entitled to severance and notice compensation, as well as be able to sue for reinstatement.
- Status of Worker or Employer Staying in a Quarantined Area Due to Corona Virus
According to Labor Law m. 24, if compelling reasons arise that require the employee to stop work for more than a week in the workplace where he/she works, the employer may terminate the employment contract for the right reason if a compelling reason arises that prevents the employee from working in the workplace for more than a week.
- Is the Employer Pay to Employee Who Is In The Quarantine Zone or Quarantined?
In case of compelling reasons to stop work for more than a week in the workplace where the worker works, or from the employer’s point of view; In the event of a compelling reason that prevents the worker from working at work for more than a week, the worker who cannot or is not employed is paid half a wage for each day during a one-week waiting period.
If the compelling reason continues for more than a week, the employer may terminate the employment contract for good reason. As a result of the employment contract terminated by the employer, the employee will be entitled to Severance If other conditions are met. In this case, the employee must be paid Severance.
If the Employment Contract is terminated by the worker, the worker will be entitled to Severance pay after the immediate termination for the right reason.
At the end of the one-week period that the employer must wait for the right to terminate for the right of termination, the employer can expect the compelling reason to disappear by not exercising the right of termination if he wishes. In this case, the employment contract signed between the parties will be suspended. During this period, the employer has no obligation to pay any wages to the employee.
- Corona virus Epidemic Disease; Does it allow the employee and employer to terminate the employment contract for the right reason? In this case, what will be the outcome of severance and notice compensation?
- Termination of the Employer’s Employment Contract if the Worker working at work is infected with coronavirus epidemic;
There is the possibility to terminate the employer’s employment contract for the right reason. According to 25/1/b of the Labor Code; ‘’.. In cases where it is determined by the Health Board that the disease in which the worker is being held is incurable and that there is a problem with his work in the workplace…”It is stated that the employment contract will be terminated by the employer for the right reason. The determination of the objection by the Health Board may cause delays in terms of corona virus today. Therefore, the objective objectionable work of the worker in the workplace will be considered a valid reason. The employee will be entitled to Severance pay provided that he/she completes the 1-year severance requirement after termination by the employer. The situation is different in terms of Notice Compensation, which is raised in indefinite Term Employment Contracts. 25 of the Employer Employment Contract. It does not have to comply with the notice prefixes due to the termination for the right reasons listed in the article. In this case, the employee will not be able to make any credit claims regarding the Notice Compensation. It should also be reminded that; Termination of employment contract is always the final stage to be applied in accordance with the ‘Principle of Termination as a Last Resort’. Therefore, it will not be appropriate to terminate the employment contract without consuming options such as using leave for the worker, having compensation work done, and testing the remote working system.
- Termination of the Labor Contract of a Worker working at work if he or she is infected with Corona virus Epidemic;
According to the provision 24/I/b of the Labor Code; ‘’.. If the employer or another worker, whom the worker meets closely and directly, is infected with an infectious or incompatible disease with the worker’s work…”the worker may terminate the employment contract for the right reason. The important thing to note is that the workers are constantly in close and direct contact. In this case, the worker will be entitled to Severance. In this case, the employee will not be able to make any credit claims regarding the Notice Compensation.
- Evaluation of Coronavirus Disease in Terms of Occupational Accident
In established Supreme Court Decisions; epidemic diseases are considered to be occupational accidents provided that they are within the boundaries of the workplace. However, this situation should be interpreted according to the situation and conditions of each concrete event and a conclusion should be reached. As a matter of fact, the 21st Law Office of the Supreme Court of Cassation has accepted H1N1 virus as an occupational accident in the case of the truck driver who contracted H1N1 virus on 15.04.2019 and 2018/5018 Esas, 2019/2931 Decision No. In this case, the employer may have an obligation of financial and moral compensation. During the performance of the duties of the personnel who will work within the scope of remote work, work-related accidents can also be considered as work accidents. Therefore, it is very important for employers to inform employees about this issue. Although it is generally considered an occupational accident, each incident should be evaluated according to the conditions and conditions and decisions should be made within the conditions.