This includes our answers to frequently asked questions by employers and our suggested solutions to new problems emerging due to the Covid-19 pandemic..
• What is half-salary method?
Pursuant to Article 40 of the Labour Code, “The employee who cannot work or who is not engaged in work due to compelling circumstances, set forth in subsections III of Articles 24 and 25 shall be paid, for up to one week, half his salary for each day.” Articles 24 and 25 (on compelling circumstances necessitating suspension of work and compelling circumstances preventing the employee from performing his duties for more than a week, respectively) mention how compelling circumstances enable parties to terminate an employment agreement on valid grounds. According to these regulations, if there are such circumstances that prevent from carrying out the work, the employment agreement will be suspended. During this period, employees should be placed on half salary for the first week. If the compelling circumstances persist after this one week period, both parties will be entitled to rightfully terminate the employment agreement. In that case, the employee will be entitled to severance pay.
• Is it possible to extend the half-salary period?
The law limits the period during which the employee receives half salary with 1 week. However, Turkish employment law expects parties to an employment agreement to show reasonable effort to ensure the continuation of the agreement. The principle of “termination as last resort” is one of the most fundamental principles that should be taken into consideration in all employment relations. Therefore, in the interests of continuing the employment agreement and avoiding losing employees, employers might consider continuing with payment of half salaries for the duration of compelling circumstances, rather than resorting to the suspension of the agreement. It is also possible that the employer might be able to benefit from short-time employment fund. Further details on this can be found below.
• Does the Covid-19 pandemic constitute a compelling circumstance, within the meaning of Turkish employment law?
Employers must take measures at the work place to provide employees a healthy work environment. However, if these measures are not adequate to provide the healthy work environment or if the work environment is shut down (e.g. shutting down of a shopping mall or factory, declaration of curfew or a quarantine decision) the Covid-19 pandemic will constitute a compelling circumstance. In that case, the employment agreement can be suspended. The employees should first be placed on half salary following which the employment agreement may be rightfully terminated. Application for the short-time employment fund might be considered as an alternative as well. In light of current conditions, we would advise employers to continue their agreements with employees as long as it’s possible and to always consider termination of the agreement as the last resort.
• If an employee is infected with Covid-19 at the workplace or while performing his contractual duties, would this be considered a work accident?
In regard of Turkish Supreme Court case law, if an employee gets infected at the workplace or during a business trip/meeting, this will be considered a work accident.
• If an employee at the workplace gets infected by the Covid-19, would this constitute a ground for rightful termination of the agreement for other employees?
Pursuant to Article 24 of the Labour Code “If the Employer or another employee, who is in close and direct contact with the employee, is infected by a disease which is contagious or non-compatible with the work carried out” employees are entitled to rightful and immediate termination of the employment agreement. Therefore, an employee who is in direct contact with an infected colleague will be entitled to terminate their employment agreement. In this case, the employee will also be entitled to severance pay.
• If an employee who is working from home suffers from an accident, would this constitute a work accident?
Because of the Covid-19 pandemic, most workplaces allow their employees to work from home. If the nature of the business is compatible with working from home, this would be considered as a reasonable measure. This situation brings up the question of whether accidents that happen at home would be considered as work accidents.
We are of the opinion that not all accidents that occur at home should be considered as work accidents. Only those accidents that are directly related to the execution of the employee’s contractual duty or which are caused by or relate to the equipment given to the employee for the execution of their duty should be considered as work accidents. Employers are expected to have in place home-office procedures, establish work health and safety rules to be followed while working from home and supervise employees’ adherence to these rules.
• Can the employer measure body temperatures of employees who come to the work place because of the Covid-19 pandemic?
Pursuant to Law No: 6698 on the Protection of Personal Data (“PDPL”), health data is categorized as sensitive personal data and therefore cannot be processed and stored without the explicit consent of the data subject.
However, under labour regulations, employers are required to ensure safety at the workplace and owe a duty of care to their employees. Accordingly, employers may measure the body temperatures of employees at the entrance of the workplace, provided no data is recorded. Where data is not recorded, this doesn’t constitute “data processing” as defined in the PDPL and employers will not be required to obtain employees’ explicit consent or inform them with regards the nature and purpose of processing. The employer will be allowed to deny an employee with high body temperature entry to the workplace, citing the risk to other employees’ health.
• Can employers request medical reports from employees confirming whether they carry Covid-19 risk or whether they show any Covid-19 symptoms?
Employees who carry the risk of being infected due to travel or similar reasons should first be advised to not to come to work for 14 days. After this period, employees might be asked to provide a medical report. However, employers cannot force employees to provide a medical report. If this report cannot be obtained from hospitals for any reason, the employee might be allowed in the workplace with the approval of the on-site occupational physician.
• What is the short-time employment and short-time employment fund and under what conditions it may be applicable?
Short-time employment used to be regulated under Labour Code, and it is now regulated under Law No: 4447 on Unemployment Insurance.
Pursuant to this Law, short-time employment is possible for up to 3 months in case of a temporary reduction of weekly work hours or a partial or complete temporary shutdown of the workplace, due to general economic, sectorial or regional crises and compelling circumstances. This period might be extended up to 6 months by a presidential decree.
Employers shall give notice of their short-time employment requests to the Turkish Employment Agency, including the reasons for their request. In this notice, the employer is required to:
a) Explain the effects of general economic, sectorial or regional crisis and what are the compelling circumstance and their effects on the business,
b) State the title, address of the workplace, name of any trade unions party to collective employment agreements, Agency registration number and social security registration number of the workplace,
c) Submit a list including information about employees who will be subject to short-time employment to the Agency, in the electronic and written format determined by the Agency.
The Agency established an online application system after the Government’s announcement of the economic stimulus package. Application forms are available on the Agency’s website.
For short-time employment, short-time work allowances will have to be paid by the Unemployment Insurance Fund. To benefit from this allowance, employees should meet the requirements for unemployment insurance, except termination of employment. Accordingly, the employee should have worked with insurance for the last 60-day period before the date of application. The short-time work allowance will be paid to persons who are covered by the insurance and who paid their unemployment premiums for at least 450 days in the last 3 years.
Short-time work allowance is 60% of the average gross salary of the insured employee. It is calculated on the basis of the last 12 months’ salaries. The short-time employment allowance cannot be more than 150% of the gross monthly minimum wage. Short-time employment allowance payments will be set-off against unemployment compensation determined initially.
• What is the collective leave of absence? Can employees be requested to go on a collective leave of absence due to the Covid-19 pandemic?
Right of collective leave of absence is regulated under Article 10 of the Annual Paid Leave Regulation: “The employer or employer’s representative may require a collective leave of absence, within the period between the beginning of the April and end of the October, to some or all employees in the workplace. The collective leave of absence may be applicable for those employees who are not yet entitled to annual paid leave. In case the following years the collective leave of absence is not used, the dates of the entitlement to the annual paid leave would be calculated according to general terms.”
When faced with compelling circumstances that may occur during the Covid-19 pandemic, priority should always be given to the continuation of the employment agreement. Collective leave of absence should to be used, without violating the rights of employees. Introducing collective leave of absence, before suspending the employment agreement will be in favor of employees. By doing so, employees will be entitled to receive salary during their leave and suspension of agreement will start after the leave of absence is finished.
Beste Ege, Esq.
Doğukan Çek, Esq.