Impacts of Coronavirus / Covid-19 on Labor Contracts

Under our Labor Law, employees are required to perform their work as agreed with the employer. Only in very exceptional cases, it is possible to avoid the performance of the assigned tasks. Due to the Coronavirus (COVID-19) infection, which has occupied our world and national agenda for a long time and poses a serious and imminent danger to employees in the workplace, there are problems in the implementation of the Labor Contract. According to the law, employees may request the employer to identify and eliminate the danger and refrain from working until the danger is eliminated.

Under our Labor Law, employees are required to perform their work as agreed with the employer. Only in very exceptional cases, it is possible to refrain from performing the assigned tasks. Due to the Coronavirus (COVID-19) infection, which has occupied our world and national agenda for a long time and poses a serious and imminent danger to employees in the workplace, there are problems in the implementation of the Labor Contract. According to the law, employees may request the employer to identify and eliminate the danger and refrain from working until the danger is eliminated.

The reasons preventing the worker from working must occur in the worker’s environment. Causes arising from the workplace and preventing work do not fall within this scope. For example, the closure of the workplace is not considered a compelling reason. However, situations such as the interruption of transportation due to natural events such as floods, snow, earthquakes, and quarantine due to epidemics are compelling reasons. As a matter of fact, paragraph 2 of Article 417 of the Turkish Code of Obligations No. 6098 titled “protection of the employee’s personality” stipulates that the employer is obliged to ensure the occupational health and safety of its employees.

It is regulated in Article 13 titled “Right to Avoid Work” of the Occupational Health and Safety Law No. 6331 due to the serious and imminent dangers that workers face or will face. If we adapt this article to the present day, even if the work is stopped due to coronavirus, the employer must continue to pay salaries to employees. If the situation at the workplace is very urgent (for example, if a disease is detected), employees are not obliged to go to work until they apply and learn the result, and their wage rights cannot be restricted due to their absence from work. In order to take measures at the workplace, workers can apply for an injunction to the labor court, public sector employees can apply for a stay of execution to the administrative court or an injunction to the Civil Court of First Instance. Complaints can also be made to the Regional Directorates of Labor and inspections can be requested. Workplaces should immediately be subjected to a widespread inspection by labor inspectors within a certain program.

Bosses who do not take precautions and state officials who fail to fulfill their duty of supervision will be responsible for the life and health of each worker. The coronavirus poses a foreseeable, imminent and life-threatening threat. The approach of “let the work go on, no matter what happens to the workers” may bring up possible intentional homicide and other crimes according to the Turkish Penal Code. An employee may be dismissed by the employer due to an application for precautionary measures. There is no legal provision prohibiting this, but in this case the employee is entitled to severance pay (but not notice pay).

Closure of the workplace
In cases where employers temporarily close their workplaces in response to a “public advisory opinion” issued to prevent the spread of coronavirus, or in cases of workplace closure due to stock outs as a result of the announcement of a public advisory opinion, a significant reduction in demand or quarantine of the workplace due to a coronavirus diagnosis, etc;

a) the parties agree on unpaid leave,

b) the employer granting paid leave to the employee, if any,
c) working from home if the nature of the work permits (e.g. for white collar workers),
d) making up work

It would be appropriate to evaluate the options. Again, due to compelling reasons, employers may apply to the Turkish Employment Agency and ask for short-time working in accordance with the Additional Article 2 of Law No. 4447. In short-time working (even if the workplace is completely closed), half of the first week’s wages are paid to the workers by the employer and then a certain amount of wages are paid from the unemployment fund to be deducted from the unemployment allowance they will receive in the future. With the regulation made within the scope of the new coronavirus measures, for those who want to benefit from the short-time working practice; The 600-day requirement was reduced to 450 days and the 120-day requirement was reduced to 60 days. In addition, in order for employers to benefit from short-time working, the condition of protecting the current employment has also been introduced.
“Short-time working allowance”
Pursuant to Article 40 of the Labor Law No. 4857, in the event of the occurrence of compelling reasons that cause a work stoppage in the workplace for more than one week or prevent the employee from working, the employment contract shall be suspended for a period of one week and the employee shall be paid half wage for each day during this period.

Pursuant to Article 24 of the Labor Law, if compelling reasons arise in the workplace where the employee works that require the work to stop for more than one week, the employee may terminate the employment contract immediately for just cause. In other words, the employees of the employer, who have decided to stop work due to the virus outbreak, will be able to terminate the employment contract for just cause and claim their labor receivables from the employer with the expiration of the one-week period for which they are entitled to half wages. However, in such a case, the right to notice pay will not arise, the employee will only be entitled to severance pay. It is important to note that stoppage of work due to a general compelling reason such as the coronavirus outbreak will not constitute a just cause of termination for the employer.

The employer may take employees on paid leave, in which case the consent of the employee is not required, but unpaid leave is only possible with the agreement of the employee and the employer. If the workers do not give their consent, the employer cannot take them on unpaid leave. All workers who have been placed on unpaid leave against their will can claim severance pay and all other receivables if they wish. Unpaid leave without the consent of the employee constitutes a termination and the time limit for filing a reinstatement lawsuit begins to run.

Unpaid leave petitions or forms signed by workers under threat of dismissal are not valid, and the employer’s obligation to pay wages continues.

All subcontracted workers working in public and private workplaces may apply to the principal employer for payment of their unpaid wages in accordance with the first and last paragraphs of Article 36 of the Labor Law if they do not want to quit their jobs. Principal employers are obliged to make payments to the worker’s bank account by deducting from the subcontractor’s progress payment.

In case of dismissal, workers can apply for unemployment benefit according to Article 50 of Law No. 4447.

In our opinion, dismissals should be prohibited during the pandemic period, or at least the way to benefit from unemployment benefits should be opened regardless of the exit code.