Within the framework of the principles of social security law and based on the precedent decision of the 21st Civil Chamber of the Court of Cassation dated 15/04/2019; provided that there is an appropriate causal link between the subsequent damage and the event, if it is determined that the employee is diagnosed with (Coronavirus / Covid-19) disease in the cases listed in Article 13 of the Law No. 5510, the event in question can be considered within the scope of “work accident” and the employer can be held responsible.
Within the framework of the principles of social security law and based on the precedent decision of the 21st Civil Chamber of the Court of Cassation dated 15/04/2019; provided that there is a proper causal link between the subsequent damage and the event, if it is determined that the employee is infected with (Coronavirus / Covid-19) disease in the cases listed in Article 13 of the Law No. 5510, the event in question can be considered within the scope of “work accident” and the employer can be held responsible.
On December 1, 2019, coronavirus, which emerged in Wuhan, the capital of China’s Hubei region, is a respiratory disease that is easily and continuously transmitted from person to person and threatens a large number of people in the world simultaneously in a very widespread manner. Due to the rapid increase in virus cases reported in various countries of the world since mid-January 2020, the World Health Organization (WHO) declared the (Coronavirus / Covid-19) disease as a global epidemic (pandemic) on March 11, 2020.
On March 11, 2020, Minister of Health Fahrettin Koca announced that the first case of (Coronavirus/Covid-19) was seen in Turkey.
In our country, in order to limit the spread of the coronavirus epidemic and to combat the epidemic, the effects of the virus are tried to be minimized with measures such as school holidays, mandatory travel bans, quarantines, working from home practices, curfews for people aged 65 and over and 20 and under.
Despite the measures taken, physicians and healthcare workers, who provide healthcare services under increasingly difficult conditions due to the increase in the number of cases in our country and the patient density exceeding the capacity, are diagnosed with (Covid-19) more and more every day in contact with patients with suspected or diagnosed (Covid-19) due to the lack of access to adequate personal protective equipment, and those who succumb to the disease lose their lives.
Article 13 of the Social Insurance and General Health Insurance Law No. 5510 defines an occupational accident as
-When the insured is at the workplace,
-Due to the work carried out by the employer
-If the insured is working independently on his/her own behalf and account, due to the work he/she is carrying out,
-The time spent by the insured, who works for an employer, without performing his/her main job due to being sent to another place outside the workplace on duty,
-The time allocated for the breastfeeding female insured to give milk to her child in accordance with the labor legislation,
-During the transportation of the insured to and from the place of work by a vehicle provided by the employer,
is defined as an event that occurs and renders the insured immediately or subsequently physically or mentally disabled.
On March 30, 2020, the Central Council of the Turkish Medical Association (TMA) made a declaration stating that “The diagnosis of (Covid-19) in health workers is an occupational accident or occupational disease” and this declaration was announced on www.ttb.org.tr.
In the statement made by the Central Council of the Turkish Medical Association (TMA), it is stated that regardless of whether it is in public or private health institutions, if a health worker is diagnosed with (Covid-19) in addition to other occupational exposures, an occupational accident or occupational disease should be reported, and that a health worker or someone working in health services (security, janitor, driver, secretary, etc.) who develops in connection with (Covid-19) should be notified of an occupational accident or occupational disease. In cases where the patient’s cough, sneeze and other bodily fluids splash or contaminate the respiratory tract, mucous membranes of the eyes or open wounds of a healthcare worker or healthcare worker (security, janitor, driver, secretary, etc.) should also be notified as an “occupational accident”, and even if there is no detection of a sudden event, in the event that a healthcare worker or healthcare worker is diagnosed with (Covid-19), an “occupational disease” notification should be made, taking into account the close connection of the disease with the work performed.
Pursuant to Article 47 of the Social Security and General Health Insurance Law No. 5510 titled “Duty disability”; in the event that healthcare workers working in both public and university hospitals are diagnosed with (Covid-19) both during the performance of their duties and due to the cause and effect of their duties, if a decision is taken that healthcare workers who die due to coronavirus or face a permanent health problem due to the disease are “duty disabled”, “disability pension” can be granted to the person himself/herself, and in case of his/her death, to his/her rightful heirs.
If private sector employees with ongoing workplace activities are diagnosed with (Covid-19), will the disease be considered as an “occupational accident”? Does it need to be reported to the SSI as a “work accident”?
Within the scope of preventive measures to combat the pandemic in private sector workplaces, many employers have either completely stopped or limited their workplace activities, or switched to home/remote working model in workplaces with technological infrastructure. Workplace activities continue in workplaces where the remote working model cannot be applied due to the nature of the work.
The decision of the 21st Civil Chamber of the Court of Cassation dated 15/04/2019 and numbered Main No: 2018/5018 – Decision No: 2019/2931 on the acceptance of the disease as a “work accident” in the event that private sector employees whose workplace activities continue are diagnosed with (Covid-19) is a precedent.
According to Article 13 of the Law No. 5510, an occupational accident is an event that occurs in any of the cases and situations listed in the article and causes immediate or subsequent physical or mental damage to the insured.
Since Law No. 5510 defines an occupational accident as an event that immediately or subsequently renders the insured physically or mentally disabled, it is possible for the effects of the event to continue for a period of time and increase over time and for the result to be realized later. In other words, an occupational accident may occur as a sudden event and the damage may occur immediately, or it may occur after an incubation period of 2-27 days, as in the case of (Coronavirus/Covid-19) disease.
The fact that the law characterizes the occupational accident as an event that causes damage to the insured requires the causal link to be considered as an element of the occupational accident. What is sought here is the “appropriate causal link”.
The aforementioned legal regulation should be evaluated within the principles of social security law; if there is compliance with any of the conditions in the article, a narrow interpretation should not be made in the evaluation of whether the source of the damaging insurance event is the employee or not, or other factors in its occurrence. (HGK 2009/21-400 Esas, 432 Karar)
As it is known, the World Health Organization (WHO) issued a pandemic alert on June 11, 2009 due to the rapid spread of the swine flu (H1N1) epidemic, which was first seen among people in Mexico in March 2009, and pandemic swine flu (H1N1) spread rapidly in the northern hemisphere in November-December 2009 during the winter season.
With the decision of the 21st Civil Chamber of the Court of Cassation dated 15/04/2019, the death of the truck driver, who was sent by the employer to Ukraine in November 2009, in December 2009 due to the swine flu (H1N1) virus, which was apparently transmitted during the trip, was accepted as an “occupational accident” and the definition of occupational accident was interpreted broadly by the Court of Cassation.
There is a possibility that the pandemic (Coronavirus / Covid-19) disease can be transmitted to the employee while performing his/her duties due to the work carried out by the employer, as well as in another environment. Within the framework of the principles of social security law and based on the precedent decision of the 21st Civil Chamber of the Court of Cassation dated 15/04/2019; provided that there is a proper causal link between the subsequent damage and the event, if it is determined that the employee is infected with (Coronavirus / Covid-19) disease in the cases listed in Article 13 of the Law No. 5510, the event in question can be considered within the scope of “work accident” and the employer can be held responsible. In this case, the illness of the employee diagnosed with (Covid-19) will need to be notified by the employer as an “occupational accident”.
As a result; In the event that it is determined that the employee is diagnosed with (Coronavirus / Covid-19) disease in the cases listed in Article 13 of the Law No. 5510, the disease will be considered as an “occupational accident” and the employer’s responsibility will arise, the employee himself, and in case of his death, his heirs will have the right to claim “occupational accident compensation”.
