WHAT ARE THE EFFECTS OF CORONAVIRUS ON WORKING LIFE AND ALTERNATIVE WORKING METHODS? 19 March 2020

Due to the Corona virus epidemic, which was declared as a pandemic by the World Health Organization, and given the cases recently detected in our country, reflections on legal impact of this extraordinary period on working life is of the utmost interest and importance.

In the following, we discuss various work models that can be implemented in order to slow the spread of the epidemic, as well as alternative solutions for the continuation of employment while the pandemic runs its course.

1. Working from Home

Pursuant to Article 14/4 of the Labor Act, telecommuting is a work relationship, which is to be formalized in writing, based on an understanding that the employee is able to fulfill his or her work responsibilities at home, or other acceptable out of the workplace locations, through the use of technological communication tools. In accordance with sub-article 5 of this provision, the definition of the work, the way it is to be done, and its duration and location, as well as matters related to wages and salaries, the equipment to be provided by the employer and the worker’s obligations related to the equipment’s protection, the employer's communication with the worker and provisions regarding the general and private work conditions, are to be included in the telecommuter’s employment contract.

In the current crisis situation, working from home, during which the wages and other rights of the employee are maintained and the employee is to continue to fulfill his or her work obligations can be considered as the first alternative. At this point, it should be noted that in non-crisis situations, the statute discussed above applies to this work model, and all the terms of a telecommuting arrangement are to be clearly set out in a detailed written contract.

Employment contracts concluded between parties in our country are generally based on the assumption the employees is working from the workplace and are not suitable for the telecommuting work model. However, due to the coronavirus pandemic, there is no need to execute new contracts when employees are permitted, or required, to work from home, as this manner of work is being implemented on a temporary basis in the interest of both the public health and the health of the workers. Nevertheless, it is recommended as a best practice that a written notification, to be signed by the employee and placed in his or her personnel file, be considered, in which, among other things, the employer’s expectations of the employee work from home are set forth. As stated in the Economic Stability Shield Package announced by the President on 18 March 2020, the subsequent legislation concerning telecommuting, and other work models, is to include more specific details about what is required of both employers and employees in this regard.

2. Administrative Leave

In the current situation, it is preferred that employees not to come to the workplace, in light of the Occupational Health and Safety measures regarding public health and workplaces. In order to prevent the employees from being harmed by the pandemic, while retaining them for the future, employers may prefer to continue to pay their employees’ wages, even they will not benefit from these employees’ work during this period of crisis. There is no explicit provision in the Labor Act pertaining to such regarding this approach, , which is commonly referred to as administrative leave . It is widely accepted there is no need to obtain approval for administrative leave, and is a matter entirely within the employer's discretion that favors the employee, and does not affect the employee’s right to annual leave.

However, an employee can consider requesting “compensatory work” by an employee given administrative leave, which does not result in the employee being paid more only that he or she work for several hours notwithstanding the administrative leave status. According to the applicable legal regulation, in the case of compulsory work stoppage, the employer may call for compensatory work from an employee not exceeding 3 hours a day within two months of the disappearance of the reason for the compulsory work stoppage. It should not be forgotten that the compensatory work should not exceed the legal maximum working time of 11 hours per day. In addition, in the Economic Stability Shield Package announced by the President on 18 March 2020, it was stated that the 2-month compensation period is to be extended to 4 months, and codification of this is expected in the coming days. Although there is no legal regulation regarding the obligation to obtain approval from the employer regarding requiring the compensatory work of an employee on administrative leave, it is recommended the employee be notified of the legal basis for the compensatory work and the date compensatory work is to start.

3. Annual Permit/Annual Vacation Leave

In the current situation, the use of annual leave for the duration of an employee’s absence is another possibility for stopping work. In accordance with the Labor Law and the relevant regulation, an employee is to inform the employer in writing of the time he or she wants to use his or her right to annual leave; however, the employer is not bound by the date chosen by the employee. In this sense, the dates of annual leave can be determined by the employer for workplaces that have an annual leave board, by considering the status of the work and the necessity in the workplaces that do not have a board.  Although it is most common, and even traditional, in our country for annual leaves to be taken in the summer country, given the current crisis, it should consider that the permission request form and annual leave usage schedules allow for leave to be taken in the following week, although care should be taken that such leave is based on mutual consent, with it recommended that a protocol to be signed by the parties.

It would be appropriate for the employer to use the accumulated leaves first, although itis possible to have any annual leave used be deducted from future annual leave rights.

4. Unpaid Leave

Due to the extraordinary period we are in, with the urgent need to protect public health and the safety of workers, while taking measures for the protection of employment, it may be considered to encourage employees take unpaid leave in addition to, or in lieu of, the measures considered above, while respecting the principle of the application of the labor law in favor of the employee.  It should be emphasized here that, although there is no regulation regarding unpaid leave in the law, the use of unpaid leave in practice, a practice supported by case law, is subject to it being requested or approved by the employee. In this case, it is strongly recommended a protocol be signed that shows the use of unpaid leave is based on mutual agreement before the employee is given unpaid leave. It should also be kept in mind that the use of unpaid leave without the consent of the employee is considered to be a termination of employment by judicial decisions.

5. Other Topics on the Agenda

a. Is the “Half Wage” provision stipulated in Article 40 of the Labor Act applicable for employers who close the workplace due to an epidemic illness?

In Article 24 of the Labor Act, the termination of the employment contract has been regulated in favor of the employee and in the Article 25 of the Labor Act in favor of the employer. Additionally, it is required that the employee who cannot work or is not to allowed to work for the compelling reasons listed in the articles referenced in Article 40, is to be paid half of his or her wage for each day, up to a week, within this waiting period.

It is controversial whether the threat of epidemic, such as we are currently facing, falls within the scope of the compelling reasons referenced above, and, in our opinion, none apply since we are not facing a situation that requires the imposition of of quarantine. On the other hand, Republic of Turkey the Annex-Circular published by the Ministry of Internal Affairs, states the existence of a compelling reason should be accepted for workplaces closed as of 16 March 2020 or for workplaces to be closed in case of countrywide curfews. In the cases which are listed, employers may come to the agenda for half a week and it is not possible for employers to pay half wages, except those whose are closed under the Annex-Circular of the Ministry of Internal Affairs.

b. Is it possible to benefit from “short-time” working allowance due to the epidemic illness?

According to the Unemployment Insurance Law No. 4447, short-time working allowances are paid to the employer, if the employer is required to temporarily reduce weekly working hours in the workplace by at least one-third due of general economic, sectoral or regional crisis and compulsory reasons, or if the employer, due to one of these reasons, stops activities in the workplace completely or partially for at least 4 weeks. In case of the acceptance of the short-time working, services are paid to the employees by the Social Security Administration, as are the general health insurance premiums.

In the usual process, the appropriateness of the reasons requiring short-time work is determined by the inspectors of the Ministry based on the decision of the Board of Directors of the Social Security Administration, and employers who are deemed suitable are able to benefit from the short-time work. However, in the existence of certain compelling reasons for short-time work, such as earthquake, fire, flood, landslide, epidemic, mobilization for war, etc.,  to go to Turkey Business Council a Board decision is not required.

It is important whether the coronavirus epidemic is accepted as the compelling reason for reducing or partially or completely stopping working time. In the 18 March 2020 statements made by the President; he stated the short-time working allowance will be put in place and the utilization processes will be facilitated and accelerated. As a result of this Presidential declaration, regulations regarding secondary legislation and implementation principles are expected in soon.

c. In this process, can employees terminate their employment contracts?

Although a misconception appears to exist that employment contract scan be terminated for compelling reasons, the current crises does not provide a justification for  terminating employment contracts within the scope of Article 25 of the Labor Act. As a matter of fact, according to Article 25 / III of the Act, an employer cannot terminate an employment contract even if there is a compelling reason preventing the employee from working in the workplace for more than a week. It is clear that the compelling reason for termination must have originated from the "worker". Accordingly, it does not seem possible to apply Article 25 / III of the Labor Act in the current situation, as there is no compelling reason for termination arising from the workers themselves.

In addition, considering the principle that termination is a last resort, one of the principles dominating Turkish labor law, terminations made without considering other possibilities such as other preventive solutions, alternative working models, short-time working applications, would not be valid. In case of disputes, employers will face the financial burden of reemployment lawsuits as well as severance and notice payments.

On the other hand, it should be emphasized that the goal of the incentives and opportunities listed in the 18 March 2020 Presidential declaration is to avoid the loss of employment loss during this crisis. It is highly recommended that employers not dismiss workers, if possible, so they can benefit from the legal opportunities such a course of action will bring them in the future.        

Matters to be Considered;

In addition to all the possibilities we have discussed above, we emphasize here what should be considered in practice.

Keeping in mind the principle of protection of employment, and the expected interpretation of Turkish labor law in favor of workers in these extraordinary circumstances, it is recommended employers give preference to the work models mentioned above. In this context, for the worker whose job is suitable for working from home, where both the performance of work continues, and wage and social rights are maintained, should be considered seriously, as should administrative leave and use of annual leave, which also involve no wage interuption. The short time work path must certainly be put on the agenda, if these options are exhausted, as should the use of unpaid leave, provided written consent can be obtained from the worker.

It is important for employers to pay close attention, within the scope of their occupational health and safety obligations, while giving due consideration to their financial situation, to develop a general plan for ensuring a healthy and safe workplace for all of their workers, and not one necessarily taking into consideration the demands of each individual worker, so as not to find themselves with the much more costly obligation of accommodating a variety of different worker demands; for example, making provisions or the sort discussed above only for workers who request leave because of a individualized concern about their health being at risk. Due to the current situation, the Occupational Health and Safety committee should be meeting immediately and regularly in the coming days and weeks, and necessary assessments of the situations, and related decisions, will be being made. In the meantime, even while considering the options discussed above and deciding of a generally applicable at a minimum high-risk workers should be identified through health checks of all workers by workplace physicians.