The state of Turkey's workplace safety has drawn significant attention recently in light of the Soma mine disaster in which inadequate safety standards and risk mitigation are regarded as partially to blame for the tragic loss of human life. However, prior to the accident, efforts had been initiated to improve perceived deficiencies in Turkey and to meet international health and safety standards. These standards, in particular, the EU Workplace Health and Safety Directive, served as a framework for Turkish health and safety legislation. This article will explain the most relevant and recent law governing Turkish workplace safety and occupational health, Law on Turkish Occupational Health and Safety (Law No. 6331) ("OHS Law").
The OHS Law aims to regulate the duties, authority, responsibility, rights, and obligations of employers and workers in order to ensure occupational health and safety at workplaces and to improve existing health and safety conditions. The OHS Law, published on 30 June 2012, builds upon the Turkish Labor Act of 2003 and represents a significant expansion of the protections and rights afforded to Turkish workers as well as more extensive employer responsibilities with regard to workplace health and safety. Among these employer mandates are several proactive concepts new to Turkey including; employer risk assessments, accident prevention plans, industry hazard classes, on-site occupational safety experts, employee safety classes, and periodic medical examinations for employees.
The OHS Law governs workplace environments and industries (both public and private) as well as virtually all classes of employees including part-time workers, interns, and apprentices. It should be noted that while in scope the legislation is the most comprehensive to date and encompasses many industries and economic sectors, notable exemptions exist. Excluded from the scope of the OHS Law are the Turkish Armed Forces, gendarmerie, police, the National Intelligence Organization, activities of emergency response units, in-home workers, the self-employed, and rehabilitation courses provided for convicts.
One notable expansion of employer responsibilities is the requirement to provide on-site risk mitigating experts and physicians. The OHS Law mandates that safety experts and workplace doctors be provided by employers in certain situations. Such individuals can be appointed from amongst employees, or in cases in which no such qualified individual exists, an individual may be contracted from government established common health and safety units. These medical experts are defined as holders of a workplace certificate of medicine approved by the Ministry of Labor. In especially hazardous conditions, the employer may be required to establish a full time health and safety unit. This represents a significant increase in the scope of government health policies as well as an increase in employer obligations and places an additional, associated financial burden on employers.
Given the expansion of employer responsibilities, the law provides financial assistance in the form of external funding provided by the Social Security Institution to smaller firms engaged in hazardous industries. These smaller employers are defined as those with less than ten employees in a workplace classified as "hazardous" or "very hazardous" as well as "less hazardous" on an individual basis as the court may mandate.
The law establishes classes of hazards upon which different regulations and responsibilities will be placed. As mentioned above, these include very hazardous, hazardous and less hazardous classifications. Very hazardous classifications include, but are not limited to, mining, construction, shipbuilding, power generation, collection and elimination of hazardous waste, and manufacturing processes that involve toxic chemicals.
Pursuant to article 10 of the OHS Law, employers are required to perform an assessment of the risks present or potentially present in their workplace environment and the hazardous or potentially hazardous task being by the employees. Such an assessment can be prepared by the employer or produced externally. (This is one feature of the OHS Law that could potentially be abused by employers, and if any discernible abuse does in fact occur with harmful results, could lead to further amendment of the regulations.) Similarly, article 11 mandates that employers prepare internal plans for potential and possible workplace emergencies, associated with unique work environments, hazardous materials, and equipment. These plans must mitigate risks and plan for emergency responses.
Another unique provision of the OHS Law which is new to Turkey is a mechanism for employees to refuse or reject a work assignment that is not sufficiently safe or presents imminent danger. Employees utilizing such rights will be protected from punitive action by employers without the threat of losing their job, position, or benefits. Additionally, employees faced with such imminent danger reserve the right to terminate their contract with their employer. For this purpose, article 16 requires employers to inform employees of the risks associated with specific tasks and the workplace environment. Additionally, they must also inform employees of the measures taken to mitigate such risks including the roles of first-responders and emergency procedures.
Another obligation placed upon employers is the OHS Law's new requirement that employers provide medical examinations for their employees on a routine basis mandated by the Ministry of Labor, as well as after certain events including return to work after a workplace accident or illness, or upon an employee's request. Such examinations will be provided at the expense of the employer. Similarly, employers are barred from recruiting individuals who are medically disqualified from hazardous work. Associated with this is the additional requirement that past employers share medical information of their workers with other prospective employers. This provision protects both the employer and the employee.
Article 20 of the OHS Law mandates that employees be given representation in the form of elected individuals from amongst the employees themselves. If election is not feasible, such a representative(s) may be appointed by the employer. The number of such representatives shall be determined based upon the number of employees. The representative will be authorized to coordinate and contribute to studies on occupational health and safety, request the employer to take precautions against workplace risks and submit proposals in this respect, and represent the employees in relation to similar subjects.
Employers found to be in violation of any of the requirements of the new law are subject to punitive action from the Ministry of Labor including fines, audits, inspections, and suspension of all activities. Fines to be levied on employers pursuant to violation of individual statutory requirements are specified in the OHS Law and range from TL 1,000 to TL 80,000.
The OHS Law represents the most significant legislation aimed at improving workplace health and safety ever enacted in Turkey. It expands the rights and privileges afforded to employees while greatly expanding the responsibilities and obligations of employers to provide for a safer and more representative work environment. While seen as necessary and progressive legislation, the statutory requirements place significant responsibilities on employers which will likely translate into higher operating costs. While the Ministry of Labor is empowered to ensure implementation of the OHS Law, full implementation will likely take time to achieve. Similarly, greater clarification is needed regarding full vs part-time employment, hazard classification, and employer medical responsibilities. Nevertheless, the OHS Law can should be appreciated as a positive step towards expanding and clarifying employer and employee responsibilities, while concomitantly establishing mechanisms for a safer workplace and meeting international standards of workplace health and safety.