Impacts of Corona Virus Pandemic In Terms of Turkish Labor Law

ADMD Law Office
İlayda Dogan & Kardelen Lule

Corona Virus (COVID-19) pandemic has impacts on the relations between the employers and the employees along with its effects on daily life.

First, it should be noted that as per Article 4 of Law No. 6331 on Occupational Health and Safety, one of the main liabilities of the employer is to provide occupational health and safety of the employees. Accordingly, informing the employees on the pandemic, sufficiently and constantly providing hygiene products such as soap, cologne and hand sanitizer, ensuring the cleaning and ventilation of the workplace are deemed to be employer’s liabilities.

The impacts of the pandemic on leaves, working order and hours are evaluated below under main titles.

1. Remote Working

As the first recommendation of the experts to prevent the rapid spread of the virus is social isolation, it is possible to implement remote working for the employees, who do not directly have physical contribution to the productive activity conducted in the workplace. Remote working, as it is described in the legislation, is an employment relationship founded in writing, where the employees perform the work under working organization of the employer in their houses or outside the workplace via technological devices.

Our primary recommendation for switching to remote working is to make an announcement first, announcing the working order and hours, in which the remote working will be done, and then to obtain a written deed of consent from the employees based on said announcement to be kept in the personnel files. Since the accidents in relation to the work had by the employees in their houses while performing their work within the scope of remote working shall be deemed occupational accidents, it is essential for employers to inform their employees on the matter. For example, in case of desk jobs, the employee should be informed on safety measures regarding ergonomics.

In addition to the foregoing, in case the employee does not have the required technical equipment in his house for remote working, then the employer should provide the employee with such equipment that is required to work remotely.

2. Paid Annual Leave

For the employees that earned right to paid annual leave (as it is known, employees earn right to paid annual leave after working for one (1) year for an employer) , it is possible to resort to let the employee use such right of paid annual leave. The periods, on which the annual leave will be used, is determined by the employer and the employer is obliged to exercise such right within the scope of good will. For the employers to notify the employees in writing on the dates that the annual leave will be used shall suffice for the purposes.

3. Other Paid Leaves

Although administrative leave is regulated only for civil servants, it is seen in practice that employers in private sectors make their employees take a leave without making deduction from their earned annual leaves or cutting back from their salaries. If this application is to be followed, it will be appropriate for the employer to notify the employees in writing on the dates that such leave will be applied.

4. Collective Leave Days

Article 10 of the Regulation on Annual Paid Leave enables employer to apply collective leave days for all or a part of its employees between the beginning of April and the end of October. Accordingly, starting as of April, it is possible to apply collective leave days. In such a case, a leave board formed within the establishment shall draft and announce the leave schedules indicating the end date of each employee’s leave period in such a manner that all employees on collective leave commence the leave at the same time and in accordance with the leave durations set forth under Labor Law No. 4857 and travelling leave requests.

5. Unpaid Leave

As per Labor Law No. 4857, unpaid leave is only permitted in cases and for periods specified in the law upon employee’s request; however, apart from cases prescribed in the law, it is possible to suspend the employment contract through unpaid leave, provided that the parties of such employment contract reach a mutual understanding in writing.

The important point to be taken into consideration with regards to unpaid leave is that the employer cannot apply unpaid leave based on its own decision. The employer’s giving unpaid leave to an employee contrary to his will is qualified as actual termination of the employment contract under the practice of High Court of Appeal. Unless the approval of the employee is obtained, it is probable to encounter a reemployment claim and a risk of eventually paying a compensation corresponding to salary of eight to twelve months. To eliminate such risk, the employer should offer unpaid leave to the employee and obtain written approval of such employee within six (6) business days for the application of unpaid leave.

In case the employee does not consent to unpaid leave; then options of paid annual leave, collective leave or remote working may be considered.

6. Reduction in Working Hours

Another practice that may be implemented is reduction in working hours, where the employee may be granted a reduced working hour allowance by the government. Reduction in working hours involves temporarily decreasing weekly working hours by at least 1/3, or partially or completely ceasing activities in the workplace for at least four (4) weeks without the requirement of continuity due to general economic, sectoral, regional crisis or force majeure. In such a case, an income support is provided to the employees, who fulfills the requirements of unemployment insurance, for the period, not exceeding three (3) months, that they do not work. Such period may be extended to six (6) months by Presidential decision.

During the period with reduced working hours, a reduced working hour allowance is paid to the employees and their general health insurance premiums are covered by the government for the unworked/reduced hours. To apply reduced working hours, employer is required to make an application to the relevant directorate of ISKUR (Turkish employment agency) justifying its reasons. Reduced working hours can only be implemented if the application to ISKUR is approved.

In terms of reduced working hour allowance, there are some qualification sought for specific to the employee. Accordingly, to benefit from such allowance, the employee should fulfill the qualifications to earn unemployment insurance payments; in other words, should have worked uninterruptedly by paying premiums for the last one hundred twenty (120) days prior to the date of commencement of reduced working hours and have paid unemployment insurance premiums for at least six hundred (600) days within the last three (3) years. With the amendments introduced by the Omnibus Law No. 7226, said periods have been revised respectively as sixty (60) days and four hundred fifty (450) days in the last three (3) years to be applicable until June 30, 2020.

The Ministry of Family, Labor and Social Services announced that the applications for reduced working hour allowances can be made online as of March 23, 2020 and referred to the information note, to be published in ISKUR’s website, regarding the application and evaluation process.

The extended information note on ISKUR’s website regarding reduced working hour allowance further explains the principles with regards to benefitting from such allowance due to COVID-19 pandemic. In accordance with the said information note:

• Employers, who are affected adversely from COVID-19 and therefore wish to implement reduced working hours, may lodge their applications by electronically sending the required documents (reduced working hours request form and list of details of the employees to be worked for reduced hours) to provincial directorates of ISKUR through the electronic mail addresses specifically created for the purposes.
• Reduced hour payments shall be realized following the conformity assessment conducted by Department of Guidance and Inspection.
• The application result shall be sent to the employer through the e-mail address, via which the application for reduced working hours was sent.
• Employers, whose applications are approved, shall update the notification list of reduced working hours and notify such to the e-mail address of relevant ISKUR directorate within the period granted by ISKUR.

7. Compensatory Work

In compliance with Article 64 of Labor Law, it is regulated that compensatory work for the unworked hours can be done within the following two (2) months (such period has been extended to four (4) months under the action plan announced on March 18, 2020), in cases where the working hours are significantly below the regular hours or the workplace is completely shut due to cease of work as a result of force majeure, suspension of workplace before or after national holidays or similar reasons, or where the employer is given leave upon is own request. In this respect, in case compensatory work is done for the unworked days due to COVID-19 outbreak, such work will not be deemed overtime working. In practice, compensatory work should not be over three (3) hours per day, provided that maximum working hour of eleven (11) hours per day is not exceeded and it should not be done on non-working days.