As the Coronavirus continues to spread in Turkey, employers are required to take certain measures to be able to protect their employees and others, and also continue to carry on with their day-to-day business. This is aimed to be a quick guide for the employers covering FAQ on the topic.
Pursuant to Article 417 of the Turkish Code of Obligations, the employer owes a duty of care to its employees and needs to take any measures necessary to provide a healthy work environment for its employees.
Employers may implement several measures to ensure their employees can work in a safer environment where they don’t feel exposed to health risks, such as:
These types of precautionary measures are crucial to make sure employers duly observe the duty of care they owe towards their employees. Otherwise, employees may resort to rightful termination of their employment agreement, citing exposure to an unsanitary work environment.
Pursuant to Article 24/1-b of the Labor Code (Law No: 4857), employees are entitled to terminate their employment agreements in cases where the “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”. Therefore, if the Employer does not take precautionary measures such as those mentioned above, the employee may be able to rightfully terminate the employment contract pursuant to Article 24/1-b, and thus be entitled to severance pay.
The economic recession caused by the Covid-19 pandemic doesn’t constitute a valid reason for termination of employment agreements by the Employer. Any dismissals based on economic recession may be deemed invalid by the Courts and any consequent litigation may result unfavorably for the Employer.
Under current conditions, employees cannot be forced to take unpaid leave. Unpaid leave may only be given by obtaining written consent from employees.
Similarly, employees cannot be forced to take annual leave. However, it is possible to encourage employees who have relatively longer accumulated annual leave to use that annual leave.
On the other hand, if the working environment at the workplace gives rise to concern health-wise, the work cannot be carried out from home due to its nature and the granting of unpaid or annual leave is not an option, the Employer may instead resort to using administrative (paid) leave.
If the nature of the business allows working from home, the Employer may also opt for temporary home-office solutions.
If an Employee does not wish to come to work because of the Covid-19 pandemic, they should first be explained in detail the various health measures taken at the workplace and the adequacy of physical work conditions. Depending on the nature of the business, working from home may be offered as an option. If these do not suffice, the employee may be offered to take annual leave or unpaid leave.
If the Employee doesn’t agree to any of the options presented to them and does not fulfill their work duties, the Employer may resort to implementing absence management procedures as a final option. However, we believe this procedure should be applied tolerantly and with discretion, in light of current health conditions.
Beste Ege, Esq.
Doğukan Çek, Esq.