A. GENERAL OVERVIEW
The outbreak of the new type Coronavirus (Covid-19), which was announced as a pandemic by the World Health Organization (WHO) on 11.03.2020, brought about many new situations and problems in our working lives. One of these is that for the health of their employees, their technological infrastructure is also suitable for the work places to implement remote telework. However, the practice of working remotely, popularly known as working from home, has also revealed a number of uncertainties in the assessment of Occupational Safety and accidents.
B. TELEWORK IMPLEMENTATION
Working from home office or working from home among the public is a working model that is often applied in essence. It is a work system in which the employee freely determines the place where he or she works, exiting the classical workplace definition. Especially with the development of technology, telework implementation, which is frequently used both in the IT sector and in the sales sector, is preferred by many businesses that have been able to adapt themselves to technological developments. While there is no regulation in the Turkish Labor Law Legislation, it entered our lives in 2016 with the amendments made in Article 14 of the Law No. 4857. Telecommuting In paragraph 4 of Article 14, "Telework; is the work relationship established in written and based on the principle of fulfilling the work of the employee at home or out of the workplace with technological communication tools within the scope of the work organization created by the employer." It is defined in the form.
2. The Concept Of The Workplace In Telework
The concept of the workplace is defined in the legislation as an organization where the employee is organized together with material and non-material elements for the purpose of producing goods or services, where the employer is connected with the goods or services produced in the workplace in terms of quality and which is organized under the same management, including places connected to the workplace, including rest, breastfeeding, eating, sleeping, bathing, However, the employee who works in the telework implementation performs his / her work in his / her home most of the time, except in the areas mentioned in the definitions. But will the employee's home be considered a workplace in this context?
Especially in terms of Occupational Health and safety provisions, it is very important that the workplace is identifiable. Is it the duty of the employer to provide job security in the home of the person working at home while the employer is responsible for ensuring job security at work?
In line with the principles of confidentiality of private life, immunity of Housing and Prohibition of arbitrary search, it is clear that the employer can not inspect the home of the employee working from home. For these reasons, the presence of the employee at home during telework does not mean that the house is a workplace.
3. The Concept Of Work Accident In Telework
But if an accident happens to the employee at home during telework, will it not be considered a work accident? Does an incident have to occur at workplace in order to be considered an occupational accident? Course no. In the Occupational Health and Safety Act No. 6331, an occupational accident is defined as an event that occurs in the workplace or due to the execution of the work, which causes death or makes the integrity of the body mentally or disabled. Even if the incident is not in the workplace, it is an undisputed occupational accident if it occurred due to the conduct of the business.
So why is the employer responsible for this work accident? Labor Law No. 4857 In the article 14., it also regulated the requirement for equal treatment of the employer's remotely working employee. In accordance with this principle, employers have employees working remotely considering the nature of the work, provide necessary training to inform employees about occupational health and safety measures, health surveillance and to provide the necessary safety measures are obliged to take about the equipment that you provide. If the employee has not been given adequate Occupational Health and safety information before establishing a telework relationship, the employer has a responsibility.
The main question we face here is whether the incident that happened to the employee was related to the job.
The implementation of telework, which has just entered into our working life, also brings with its discussions due to the fact that the regulation in the legal regulation has not been issued. Whether the case should be considered as a work accident or not has also been one of the most important discussions.
The law counted every incident related to work as a work accident. In this case, if you need to move forward with examples, the events such as when the employee who works at home went to the kitchen and poured tea on the kettle while putting tea or cut his/her hand while preparing lunch for himself/herself, should not be considered as work accident because it is not related to the execution of the work. Of course, there is a view that argues otherwise. Those who think that the work accident should be considered, just as the employee who does not work remotely, has to take his/her tea from the kitchen and if the tea is poured on the work accident is counted if the same incident happens to the employee working at home according to the principle of equal treatment should be counted as a work accident. But the distinction here should be the concept of the workplace. Since the employee's home can not be considered a workplace during work from home, the required supervision agencies (SSI and labour inspectors) and the employer do not have the authority to supervise and direct the employee's home, we believe that accidents unrelated to this type of work should not be considered an accident at work.
Another example is, if the employee who works at home falls from the chair he/she is sitting in while doing his/her job, or if he spills the tea he/she brought from the kitchen on while drinking during doing his/her job, should it be considered an occupational accident in this case? Such an accident may be considered an occupational accident, whether or not it is contrary to the information and training of the employer. Because this time we are talking about an accident that happened to him/her while he/she was doing his/her job. The accident occurred either directly or indirectly because he/she had given some of his/her concentration to work. The fault or absence of the employer in work accidents shall determine only the compensation obligation to the employee and the rate at which he or she will be held liable in recourse compensation.
4. Occupational Health and Safety in Telework
As we explained in our article, the implementation of telework does not eliminate the employer's Occupational Health and safety obligations. It only sets limits. The employee is subject to periodic examinations which are necessary for Occupational Health. Even if he/she telework, he/she will be able to continue to benefit from the workplace physician.
In addition, the employer should give the employee the necessary information and training about the environment in which he/she will work, the necessary explanations should be made about the equipment he/she will use, and detailed information about their use should be given. Otherwise, he/she will be personally responsible for all damages that may occur.
With the new type of corona virus (Covid-19) outbreak, we tried to briefly address the issues that should be considered in terms of occupational safety during telework, which can be implemented by mutual agreements between employers and employees. If we briefly summarize the points that require special attention, the necessary trainings should be given to the employees by the employer, information should be given, and these informations and trainings should be respected by the employees. In this system, where working hours can not be followed properly by employers whose infrastructure is unavailable, the implementation of telework with mutual goodwill and agreements may continue. Each event will be evaluated within itself and this newborn system will become clearer as the application progresses.