Covid-19 and its Reflections over Turkish Employment Law
COVID-19 salgınında iş sözleşmelerinin feshi
There have been remarkable changes in employment law in Turkey due to the Law numbered 7244 and titled as Reducing the Effects of the New Coronavirus (Covid-19) Outbreak on Economic and Social Life and the Law on Amending Some Laws (the “Law numbered 7244”) which was published on the Official Gazette numbered 31102 and dated April 17, 2020. By the Law numbered 7244, the Provisional Article numbered 10 has been added to Labour Law numbered 4857 and some noticeable changes have been made regarding the termination of employment contracts. As per the respective Article, employers will not be able to terminate the employment contract of their employees, except in cases that do not comply with the rules of ethics and goodwill regulated in both Labour Law Article 25/II and other laws. Such prohibition on termination, has been extended and will remain in force until January 31, 2021 in line with the Presidential decision numbered 3135. Up to this determined date, employers who terminate their employees’ employment contract will be faced with an administrative fine in the amount corresponding to respective employees’ monthly gross salary. Thus, termination of employment contracts by employers is merely possible in the event of where employees behave against the rules of ethics and goodwill. However, the termination of employment contracts by employees are not prohibited and still remain in force without any limitation other than stipulated as in Labour Law.
Leave without pay during COVID-19
Law numbered 7244, also brought significant changes in terms of leave without pay practices as well as termination of employment contracts. By means of Provisional Article 10 added to the Labor Law, it was envisaged that employees could be given unpaid leave by employers for not exceeding period of three months. Such period has been extended until January 17, 2021 with the Presidential decision numbered 3135. As a result, employees may be subject to execution of leave without pay partially or wholly by their employers until January 17, 2021. Employees who are on unpaid leave cannot terminate their employment contract based on a valid reason due to the unpaid leave executed by their employers.
Short-time working allowance/pay during COVID-19
Short-time working is a practice where the weekly working hours at the workplace are temporarily reduced by at least one-third or workplace activities are suspended for at least four weeks completely or partially without the condition of continuity to the insured not exceeding three months in the workplace in case of general economic, sector-oriented, regional crisis or compelling reasons. During the short-time working practice, insured employees are supported with an income. Such practice has been stipulated on Additional Article numbered 2 in Unemployment Insurance Law numbered 4447. Although it has been foreseen that the period of short-time working practice may not be any longer than three consecutive months, it may be extended with a Presidential decision. Accordingly, as per the Presidential decision numbered 3134, the short-time working allowances are extended until December 31, 2020. The execution of short-time working is not subject to approval of employees.
Status of infected employees during COVID-19
Pursuant to occupational health and safety regulations and Turkish Code of Obligations, employers are obliged to take all the necessary precautions to provide safe and secure working environment and conditions to their employees. However, as it is known well that although employers take the necessary measures, there might be some occupational accidents from time to time. Another controversial issue emerges whether it will be an occupational accident if employees have Covid-19. In order for such event to be considered as occupational accident and employee with Covid-19 to go under the responsibility of the employer, the virus must be infected during the performance of the job and the employer must be insufficient to take all necessary measures. On the other hand, the incubation period of Covid-19 and the difficulty to trace the spread of the virus make it even harder to understand whether if employee with Covid-19 have infection due to the performance of the job or else. Therefore, each case should be observed and evaluated separately based on the facts in order to determine the liability of employers.
Monitoring work devices of employees during COVID-19
Due to Covid-19 outbreak, many employers have adopted remote working method for their employees. As a result, the tendency of the employers to monitor the performance of their employees has increased greatly. The most practical way to do so is to monitor devices such as electronic devices or work vehicles provided to employees. Thanks to various software programs employers may be able to track location data and online movements of their employees. However, such monitoring may not always be rightful especially in terms of right to private and family life and personal data protection. Employers are obliged to serve privacy notices to their employees if device monitoring takes place. Even though privacy notices are made duly, the collection of personal data and monitoring must be followed proportionally principle. Data processing principles are clearly stipulated as per Article 4 of Personal Data Protection Law numbered 6698 and lawful procedures followed such as obtaining explicit consent of individuals or providing them the necessary privacy notices, data collection approach and processes must be in line with principles as in Article 4. Accordingly, the principle of proportionality is one of the principles that employers should take into account while monitoring their employees remotely.
Road and lunch pay of employees during COVID-19
It is widely common of employers to entitle employees with road pay and lunch voucher for the working days as per employment contracts. Result of Covid-19 pandemic outbreak, some employers may wish to minimize such costs especially during remote working. In this context, it is a critical question whether the employer can eliminate a right clearly stipulated in the employment contract in favor of the employee without the employee’s approval. In the event where employees are not allowed to take leave without pay or short/part-time work practices, that is, even if they continue their working hours as is, it is not possible for the employer to eliminate work and road payments. Thusly, the work continues and the only difference would be the location where the work is performed from which in this case is remotely. However, in cases such as short or part time work or leave without pay, employers have the initiative to reduce or remove meal and travel fees of employees.