Immediate Measures To Be Taken By Employers Due To The Covid-19 Epidemic

IMMEDIATE MEASURES TO BE TAKEN BY EMPLOYERS DUE TO THE COVID-19 EPIDEMIC

As per the second paragraph of article 417 of the Turkish Code of Obligations No. 6098 titled “Protection of the Personality of the Worker”, the employer has an obligation to ensure the occupational health and safety of the employees. Article 417/2 states, “The employer shall be liable to take all necessary measures to ensure occupational health and safety in the workplace and keep the tools and equipment complete and workers will also be obliged to comply with all kinds of measures regarding occupational health and safety.” He says.

In Article 4 of the Occupational Health and Safety Law No. 6331 titled "Employer's General Obligation", it is stated that the Employer will be obliged to ensure the health and safety of the employees.

As stated above, due to the COVID-19 epidemic, it is imperative that employers take urgent measures regarding occupational health and safety in accordance with the work order of the companies and to make the required disclosures to the parties to the contracts in this respect. Pursuant to this;

  1. PAID LEAVE

THERE ARE NO RESERVATIONS IN ISSUING PAID LEAVES between certain dates for the employees upon administrative decisions to be taken. Employee's approval will not be required. In this case, the wages of the worker will be paid in full and the SSI premiums will be deposited by notifying the Authority over a full work day.

  1. UNPAID LEAVE

UNPAID LEAVES MAY BE ISSUED between certain dates for the employees upon administrative decisions to be taken. However, employee approval will be required under normal circumstances. Because, in the period of unpaid leave, the employment contract will be suspended and will not arise any consequences. In other words, the wages of the worker will not be processed and SSI premiums will not be paid and the number of days subject to the SSI premium will be reported as "0".  If this approval is impossible to be obtained one by one due to the high number of employees, those who object to the unpaid leave procedure will be requested to apply to the authority within a reasonable period of time in written form.  Unilateral unpaid leave applied without the consent of the employee shall mean implied termination by the employer. The process for the reemployment lawsuit will be initiated.

  1. WORK FROM HOME

IT MAY BE REQUESTED THAT EMPLOYEES WORK FROM THEIR HOMES between certain dates upon administrative decisions to be taken. Employee's approval will not be required. The process to work from home may not be applicable at all workplaces. Employees who object to this even if such process is applicable, will be requested to apply to the authority within a reasonable period of time in written form. In case of work accidents which occur during work from home, it will be checked whether employer's responsibility arises or not according to the concrete case within the scope of force majeure. For this reason, the employees who will continue to work from home should be informed about work safety.

“As per Article 14 of the Labor Law, remote working is the work relationship established in written form and based on the principle of fulfilling the employee's duty at home or out of the workplace with technological communication tools within the scope of the work organization formed by the employer. In remote working, the Employer will be obliged to inform the employee about occupational health and safety measures, to provide the necessary training, to provide health surveillance and to take the necessary safety measures regarding the equipment provided by its side, taking into account the nature of the work performed by the employee assigned for such remote work.

  1. OVERTIME SETTLEMENT AND TAKING OF ANNUAL LEAVE

IT MAY BE REQUESTED THAT EMPLOYEES TAKE THEIR ANNUAL LEAVES AND FURTHER ANNUAL LEAVES IN ADVANCE as well as to settle their previous overtime between certain dates upon administrative decisions to be taken. Employees will not be expected to produce any tasks during this period. Due to the requirement to continue the business, some employees may be immune from this decision and continue working from home. Employee approval will be required under ordinary circumstances. If this approval is impossible to be obtained one by one due to the high number of employees, those who object to this procedure will be requested to apply to the authority within a reasonable period of time in written form as of the date they have been notified.

  1. TERMINATION OF EMPLOYMENT CONTRACT BASED ON DOWNSIZING

If no long-term support package is disclosed due to COVID-19, companies may DISCHARGE EMPLOYEES BY PAYING THE STATUTORY RIGHTS BASED ON DOWNSIZING OF BUSINESS. Although there is always a risk of reemployment, with a general administrative decision to be taken based on actual downsizing, employment contracts may be terminated depending on the last resort principle. Here, there is a risk of reemployment in applications made on a person basis.

  1. SALARY REDUCTION

Due to the epidemic, companies MAY APPLY SALARY REDUCTION BASED ON DOWNSIZING OF BUSINESS. Although there is always a risk of reemployment case, this could be applied with a general administrative decision to be taken based on actual downsizing. As a rule, even though the consent of the employee will be sought in the salary reduction process, which is a fundamental change, this consent will not be sought in the short working method stated below.

  1. SHORT WORK

This is a procedure applied providing income support for the insured for the non-working period on condition that this does not exceed three months (may be extended to 6 months upon the decision resolved by the President of the Republic) in cases where the weekly working hours at the workplace are temporarily reduced by at least one-third or if the operation at the workplace is completely or partially suspended for a period of at least four weeks without seeking for the condition of continuity.

It is essential that the employer files an application İŞKUR to state that the working time at the workplace has decreased significantly or ceased due to compelling reasons and it has to be determined as the result of the compliance procedures carried out by the Labor Inspectors that the workplace has been affected by this.

The request of the employer for short work should be deemed appropriate by the inspection to be carried out by the labor inspectors and the employee should be entitled with the unemployment benefit in terms of working period and unemployment insurance premium payment days on the date the employee has started the short work process (those who has paid unemployment insurance premium for a period of at least 600 days within three years among those who are subject to the service contract for the last 120 days before the date the short work process has started).

The conditions of the Short Work Allowance have been made flexible with the support package, the conditions of which have been described and for this reason, many employers will benefit from this accelerated and facilitated process. It has been determined as a prerequisite that this does not cause loss of employment for the companies that will benefit from such procedure. This payment to be effected by the state to the employee will be 60% of the gross earnings and the maximum amount has been determined as TL 4,415.  Notifications to be served to the SSI should be done so with Code-18 standing for short working.

  1. COMPENSATION WORK

Settlement can be requested from the employees by working overtime from for a maximum period of 11 (eleven) hours a day for a period of 4 (four) months after the COVID-19 risk has terminated. For example, the application of settlement may be reported upon returning to work after the administration has announced the application of paid leave procedure or the decision to work from home.

  1. OTHER ISSUES

Despite the fact that there is a ban on flights to many countries abroad, a defense can be taken from the employee in terms of occupational health and safety who plans to go abroad without any justifiable reason and half of his/her salary may be paid in the first week of the 14-day quarantine period upon the return from abroad and no further wages will have to be paid. The employer can terminate the employment contract by paying the statutory rights.  

Furthermore, measures taken such as disinfection of workplaces in terms of occupational health and safety which continue their operations should be taken and employees and customers should be informed accordingly.

In addition, if it is suspected that an employee or a customer at the workplace is infected with COVID-19, the relevant authority must be notified immediately.

BRIEF NOTES

  • The coronavirus epidemic is a “compelling reason” in terms of labor law. The Labor Law No. 4857 has regulated the compelling reasons respectively for the parties to the contract.
  • If the work is ceased in the workplace of the employee due to the coronavirus, the employer will have to pay half the wages of the employee for a week. After one week, the employer will not pay any wages. (art. 40). In this case, the employee can terminate the employment contract in accordance with Article 24/III of the Labor Law No. 4857 at the end of a week, if desired. However, the employee cannot receive any payment in lieu of notice. He/she shall be entitled with severance pay.
  • Due to the coronavirus, if the worker does not work due to the risk of disease even if he/she is not sick, the employer will have to pay half the wage of the worker for a period of one week. After one week, the employer will not pay any wages. In this case, the employer may terminate the employment contract in accordance with Article 25/III of the Labor Law No. 4857 at the end of a week, if desired. As the consequence, the employer will have to pay severance and notice pay to the employee. (art. 40).
  • The employer may not have the employees take unpaid leaves with a unilateral decision. Unilateral unpaid leave applied without taking the consent of the employee shall mean termination of the employment contract by the employer. The process for the reemployment lawsuit will be initiated. The employer may have the employees take paid leaves or have them work from homes. In this case, the consent of the worker will not be sought. Employees and employers can make an agreement and apply the unpaid leave process. This consent of the employee for the unpaid leave will be binding on his/her side. During this period, the employee may be demanded to take annual leaves and have the overtimes used.
  • The employer may also apply for a short-time working allowance. In this case, the state can pay the employee 60% of the daily gross wage. SSI shall be notified about the deficient days in this period and payment will be made to the employee accordingly. Code-18 will stand for the short working time allowance.

Please do not hesitate to contact us through the related attorney or info@gulelhukuk.com if you have any problem.

We will continue to monitor the situation closely and will update you with any changes in response to developments.

Kindest regards,

Abide Gulel Birsen- Gulel Law Office

Yazar : GülelHukuk

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