According to the President of Turkey’s speech on May 4, 2020, the government will lift certain restrictions previously put in place due to the COVID-19 pandemic. These restrictions include:
We have created a guide of the seven key areas employers should consider when planning to reopen their business and transition to the new normal.
Table of Contents
The reopening of workplaces and calling of employees back to the workplace have important employment law and occupational health and safety connotations.
Employers have extensive occupational health and safety obligations. Considering a workplace’s current physical conditions, the presence of all employees in the workplace at the same time may pose a risk for occupational health and safety. As such, employers may prefer to open the workplace gradually. Alternatively, employers can shorten working hours or implement working in shifts. Furthermore, the employer can consider extending the remote work system period for employees whose physical presence is not required at the workplace and who can work remotely.
Calling employees back to the workplace, especially those that are in the at-risk group or those with family members in the at-risk group, may increase the risk of disease. Therefore, it would be useful for employers to discuss this issue with occupational health and safety experts and, if necessary, to obtain the opinions of health institutions before deciding to call these employees back to the workplace.
In principle, it is not possible for employees to reject the request to return to the workplace. However, if a grave and imminent danger arises in the workplace (e.g., an employee who physically works in the workplace is confirmed to be infected with COVID-19), employees have the right to cease working until the danger is eradicated pursuant to the Occupational Health and Security Law. Similarly, employees may refuse to attend meetings or travel, if meetings or travels are located in one of the regions considered unsafe or if there is a grave and imminent danger in the respective region/destination.
2. Termination of Short-term Working and Unpaid Leave Practices
Some employees may have been subject to the short-term working system, under which the government provides the employee with short-term working allowance. Employers should carefully handle ending the short-term working system and the related procedures by contacting the Turkish Employment Institution. The employer may be required to make a new application or notification to the Turkish Employment Institution with respect to the changed conditions. Furthermore, employers must notify the employees and the union at the workplace, if any, that the short-term working system will be terminated.
Employers who do not meet the conditions for applying for the short-working system or whose applications were rejected may have entirely or partially sent their employees on unpaid for the period of April 17, 2020 – July 17, 2020 in accordance with the Provisional Article 10 of the Labor Code No. 4857 (“Labor Code”). When an employer decides to reopen the workplace and call employees back to the workplace, the method of calling the respective employees back to the workplace is also important.
In principle, the notifications envisaged in the Labor Code must be made in writing and by obtaining the employee’s signature in return. Employees subject to the short-term working system or sent on unpaid leave must also be notified in writing to be called back to the workplace and their signatures must be obtained in return. However, this method may not be possible during the pandemic. Therefore, if it is challenging to notify employees through a physical document and request the employees sign and return the notifications, employers may notify the employees via e-mail and request confirmation that they have received and read the e-mail. Moreover, employers may ask employees to send a photograph of the wet signed page to the employer and deliver the original wet signed page to human resources upon returning to the workplace.
It is legally possible to call back to the workplace some but not all of the employees subject to the short-term working system or sent on unpaid leave, and to have the remaining employees continue on short-term working or unpaid leave. However, in this case, if there is no objective and substantial reason for the employer to continue to keep these employees on short-term working or on unpaid leave, this method may be contrary to the employer’s equal treatment obligation and the respective employees can file discrimination claims against the employer.
3. Workplace Health and Safety
Employers generally have extensive occupational health and safety obligations. In addition to this, various governmental institutions have issued a number of additional measures to be taken in the workplace in terms of occupational health and safety due to the COVID-19 epidemic. For example, the Ministry of Family, Labor and Social Services published general and sector-specific guidelines on occupational health and safety measures. Similarly, the Ministry of Industry and Technology issued measures for production centers such as organized industrial zones, factories and techno parks. These guides are available on the relevant ministries’ websites.
Occupational health and safety has thus been one of the most controversial issues during the COVID-19 outbreak. In this context, although the government has indicated that some workplaces may soon be operational, it is imperative that these workplaces have taken the necessary health and safety measures to continue their activities.
Calling employees back to the workplace may require employers to set company policies or rules on the following topics. It would be useful for employers to discuss these issues with occupational health and safety experts and take the necessary measures before reopening their workplaces.
Besides adhering to the ministerial guidelines and creating new policies and practices, it is essential for employers to train employees on the rules they must comply with.
4. Testing & Health Screening
Within the framework of health and safety measures in the workplace, some employers may wish to implement health tests and health screenings for their employees and third parties, such as customers and visitors.
As per the Law on Personal Data Protection (“Law“), the temperatures or health test results of employees or visitors would constitute health information and, therefore, a special category of personal data. Without explicit consent, employers may process this data only if (i) the data processing is conducted for public health and safety purposes and by someone under a confidentiality obligation, such as a workplace doctor; or (ii) there is an express legal basis for doing so under Turkish law (which could include any specific instructions from competent government authorities, a possibility given the severity of the pandemic).
On March 27, 2020, the Personal Data Protection Authority (“DPA“) issued an announcement on data processing activities during the COVID-19 outbreak in scope of the Law. According to the DPA, employers must obtain employees’ explicit consents for the processing of health data. Given the spreading rate of the virus, employees can also notify their employers that they have contracted or are experiencing symptoms of the virus. The DPA also stated that workplace doctors may process health data without the data subjects’ explicit consents. In any case, employers must inform employees or visitors of the data processing activities by providing them with a short, accessible and easy-to-understand notice written in clear and plain language.
In light of the foregoing, given employers’ obligations to take reasonable precautions to protect the health and safety of all employees, the safest approach (for workplaces other than manufacturing facilities) would be to ask employees whether they experience any symptoms of COVID-19, without subjecting them to tests or to let the workplace doctor run the tests. If an employee experiences symptoms, it would be best for the employee to inform the designated workplace doctor, if available, or request permission to leave the workplace to see a health professional.
5. Occupational Accident
An employee contacting COVID-19 may be considered an occupational accident if it is determined that the employee was infected with COVID-19 due to their job/duty. In this case, employers must handle the situation carefully and make sure to comply with all heath and security obligations, including notifying the respective governmental authorities about the occupational accident. Taking the measures mentioned in item number (3) of this guide can reduce the spread of the virus and therefore the number of cases, as well as reduce or eliminate the employer’s responsibility of a possible occupational accident.
6. Prohibition of Termination
In reopening a workplace, employers should also be careful about disciplinary practices and possible layoffs. For three months starting from April 17, 2020 until July 17, 2020, regardless of whether or not it is covered by the Labor Code, employers cannot terminate any employment or service agreements (i.e. labor service), except for terminations arising due to the employee’s behavior being contrary to the rules of ethics and goodwill, and due to similar cases listed in sub-paragraph (II) of the first paragraph of the Article 25 of the Labor Code and other law provisions. The President of Turkey has been empowered to extend the termination prohibition period for up to a total of six months.
If the employer acts in a way that is contrary to the termination prohibition, the employer may receive an administrative fine equal to the minimum monthly gross salary valid on the termination date per employee terminated, and there is a risk that the termination be considered invalid.
7. Legal Time Limits
Employers should follow all recent developments regarding legal proceedings during the transition to new normal. Legal time limits were suspended until April 30, 2020. On April 30, 2020, the President issued “The Decree to Extend the Suspension Period to Prevent the Loss of Legal Rights”, extending the suspension of time limits (e.g. statute of limitation) in legal proceedings to June 15, 2020.
Please stay up to date with further developments through the Esin Attorney Partnership Coronavirus Helpdesk