Somewhere in between the deceleration of the novel COVID-19 outbreak and the prospective second wave, Turkish government has started to loosen the restrictions that were previously introduced in the fight against COVID-19 pandemic. Likewise, private entities have put the "easing of restrictions" on the agenda, which were implemented to prevent the spread of the virus. Currently, businesses are seeking to get their workplaces ready for "returning to work" again, and naturally, various questions arise, in terms of rights and obligations of the employers, as well as the employees. This study is aimed to provide an overall guideline in this regard.

  1. Requiring Employees to Return to the Workplace

Nowadays, both employers and employees are seeking to know whether or not employers may require employees to return to the workplace and whether or not employees may reject this request, given the circumstances. In principle, employers can call the employees back to the workplace and employees cannot reject this call.

Nonetheless, under Turkish law, employees have the right to abstain from work in case of severe and imminent danger. Moreover, in Turkey, current COVID-19-related regulations restrict certain individuals from leaving their domicile; therefore they cannot be required to return to the workplace.

  1. Employees right to abstain from work

Under Law No. 6331 on Occupational Health and Safety ("LoHS"), employers have an obligation to ensure the safety and health of employees in every aspect related to the work. Employers' obligations pertaining to occupational health and safety are also regulated under Turkish Code of Obligations numbered 6098 ("TCO") wherein it is provided that "the employer shall be responsible for taking all the measures required for ensuring work health and safety in the workplace". Wording of this article explicitly states that employers should take "all" precautions that intelligence, science and technology enable, and should not content itself with the reasonable precautions.1

In this regard and in accordance with the Article 13 of LoHS, the employees who are exposed to severe and imminent danger may resort to the employer or the occupational health and safety committee and request for determination of the situation and implementation of necessary precautions. If the employer/committee accepts this request, the employees have the right to abstain from work until necessary measures are taken. In such case and during abstention, the employees are entitled to payment, and their right arising from applicable laws and their employment agreements are preserved. Furthermore, if severe and imminent danger is unavoidable, the employees have the right to leave the workplace or the hazardous area and go to the pre-determined safe place. In such a case, the rights of employees cannot be restricted. The employees have the right to terminate their employment agreement if necessary precautions are not taken despite their request.

Currently COVID-19 pandemic can still be regarded as a "severe and imminent danger". Therefore, the employees have the right to request implementation of measures to prevent spread of this disease and abstain from working till their just demand is met. Employers' failure to take necessary measures will constitute a violation of their obligations pertaining to occupational health and safety under from TCO and LoSH and in such case the employees will have the right to terminate their employment agreement.

  1. Employees who are subject to curfew

Current COVID-19-related regulations restrict the following individuals from leaving their domicile: (i) those who are over the age 65; (ii) those who have a chronical illness; and (iii) those who are under 20 (i.e. born before or on January 1, 2000). (a) Public officers, contracted personnel or employees in public institutions and organizations; (b) those who have a regular job in the private sector and document this with a social security registration document; and (c) seasonal agricultural workers are exempt from the latter restriction, unless they were born after January 1, 2002. Even though the government provides occasional exceptions for those subject to curfew, this is limited to leaving their domicile within the walking distance and only for 4-6 hours. Accordingly, employers cannot require the employees who are subject to curfew to return to work.

  1. Occupational Health and Safety Measures amid COVID-19 Pandemic

As indicated above, employers have an overall responsibility to ensure that "all" practicable preventive and protective measures are taken to minimize occupational risks. In that sense, the scope of employers' occupational health and safety obligations are very wide. It is important to note that occupational health and safety measures vary depending on, inter alia, employers' number of employees, hazard level of the workplace (which is determined according to employers' NACE codes) and definition of each job. Our assessments herein concerns ordinary office work.

As to health and safety measures to be implemented specifically for COVID-19, various governmental and international organisations, such as the Ministry of Family, Labour and Social Services, Ministry of Health, World Health Organisation and International Labour Organisation, have issued guidelines for getting the workplaces ready for COVID-19. These guidelines should be examined and complied with, to the extent applicable, to ensure compliance with occupational health and safety measures. Accordingly, below is a non-exhaustive list of measures recommended by these organisations.

  1. Preparation Team
  • There should be a team ready to implement measures against COVID-19. Measures should be implemented by either (i) the occupational health and safety committee (if exists) or (ii) by a team consisting of workplace doctor, occupational safety specialist and healthcare personnel, employee's representative and persons who are educated or experienced on first aid (if there is not an occupational health and safety committee at the workplace).
  • The preparation team should carry out the operations as to the measures against COVID-19; take care of operations regarding workplace hygiene; coordinate internal and external communications; keep the emergency plan up-to-date; ensure communication with "ALO 184 – Coronavirus Consultancy Line" and the closest hospital affiliated with the Ministry of Health, in case of a suspected circumstance; follow-up the recommendations of the public authorities and information notes published by the Directorate General of Occupational Health and Safety.
  1. Emergency Plan and Risk Assessment

Pursuant to Article 11 of LoHS, employers are required to take protective precautions, compose an emergency planning and carry out necessary measures in order to prevent any potential situations posing any kind of risks. Likewise, according to Article 10 of LoHS, employers are required to make or have others make risk assessment in terms of occupational health and safety.

In this regard, employers should, inter alia:

  • Update emergency plans considering COVID-19 and engage with the emergency plans;
  • Communicate to the employees and contractors about the plan and make sure they are aware of what they need to do, or not do, under the plan;
  • Update existing health and safety risk assessments (in light of the need to prevent COVID-19), systematically assess any risk of infection in workplace settings and to determine any appropriate control measures that should be implemented; assess the risk of potential for interaction with employees, contractors, customers and visitors at the workplace and contamination of work environment, and implement measures;
  • Arrange workplace operations and working organization in a way to prevent risks connected to COVID-19.
  1. Prevention of the Spread of the Disease

As well-known, COVID-19 is a highly contagious disease. Taking precautions to prevent the spread of COVID-19 is included in employers' occupational health and safest obligations. Accordingly, employers should, among others:

  • Conduct temperature checks with contactless thermometers before starting to work and refer those who have a fever to the workplace doctor (data protection concerns in case of temperature checks are explained under Section III);
  • Organise work in a way to allow for physical distancing of at least 1.5 meters from other people;
  • Place posters/instructions that encourage staying home when sick, promote cough and sneeze etiquette and address the importance of hand hygiene, at the entrance of their workplace and in other workplace areas where they are likely to be seen;
  • Encourage the employees to seek medical care if they experience fever, cough and difficulty breathing;
  • Provide the employees with separate trash bags for disposable tissues and biological waste, informing the cleaning staff on how to empty the trash without touching the substance inside them;
  • Instruct employees to wash their hands with soap and water for at least 20 seconds or clean their hands regularly with an alcohol-based hand sanitizer if soap and water is not available;
  • Advise employees to avoid touching their eyes, nose, and mouth;
  • Provide adequate cleaning supplies for the employees, placing disinfectants in multiple locations to encourage hand hygiene;
  • Take additional measures for employees at the high-risk group; implement remote working for employees at the high-risk group, if possible;
  • Inform employees of their possible exposure to COVID-19 in the workplace, in case an employee is confirmed to have COVID-19 infection, while maintaining confidentiality, and get in touch with health institutions;
  • Ensure taking precautions through accurate and efficient briefing and considering psychosocial risks, in order to protect the employees' mental health;
  • Resort to reliable sources to follow-up with the recent information (such as the Ministry of Health, WHO); inform the employees on recent developments as to COVID-19 outbreak;
  • Organise remote occupational health and safety trainings and prioritize matters such as workplace hygiene and order, general hygiene and psychosocial risk factors.
  1. Cleaning and Hygiene

As indicated, employers have an overall responsibility to ensure a safe and healthy work environment, and hygiene of a workplace is crucial to that end. In this regard, employees should, inter alia;

  • Prevent close interaction of employees with each other; prevent common use of the workplace equipment;
  • Establish all necessary hygiene conditions and safety measures at workplace; establish workplace hygiene and cleanliness particularly for services frequently and/or jointly used, contacted work areas, vehicles, devices and equipment; make disinfectants available particularly at lavatories, toilets, baths, stair rails, faucets, mess halls, dormitories, elevators etc.; examine vehicles, devices and equipment, and ensure maximum compliance with hygiene rules;
  • Disinfect the workplace regularly; routinely clean and disinfect all frequently touched surfaces in the workplace, such as workstations, countertops, computer equipment and doorknobs;
  • Maintain good environmental hygiene and good and regular indoor ventilation;
  • Raise awareness on hygiene among the employees, such as informing the employees on effective hand washing, covering their noses and mouths with a tissue when coughing or sneezing (or an elbow or shoulder if no tissue is available);
  • Restrict workplace visits; cancel non-emergency visits and outsourced services;
  • Provide everyone visiting the workplace with easily accessible places where they can wash their hands with soap and water; in case it is not feasible, make available alcohol-based hand sanitizers for their use;
  • Ensure hygiene of dining halls; implement measures to decrease the number of employees dining at the same time.

 

  1. Guidance on Personal Protective Equipment ("PPE")

Employers are required to provide PPE as part of their health and safety obligations. Under Turkish labour law, PPE is defined as the equipment that is designed and produced to be worn or held by the persons in order to protect them from one or more health and safety risk. There is no specific definition to determine which equipment is considered as PPE. The scope of PPE varies depending on the specifics of each job.

  • As to COVID-19, pursuant to the Ministry of Interior's circular dated April 3, 2020, it is mandatory to wear a mask at places where people are present collectively, including supermarkets, marketplaces, and workplaces where employees work collectively. Furthermore, the Ministry of Health issued guidelines on measures to be implemented at various workplaces (such as offices, malls and banks etc) and stated that employees/customers/staff of certain workplaces should wear a mask. For instance, pursuant to the Ministry of Health's guideline dated April 9, 2020 titled "Measures to be Implemented at the Indoor Workplaces/Offices", employees are required to wear a mask. As per the same guideline, cleaning personnel should use masks and gloves.
  • Employers should ensure that employees are using fully closed eye protector or face guard (EN-166), protective clothes (EN-13126), respiratory protective equipment (EN-149/FFP2 or FFP3), anti-valve masks and gloves (EN ISO 374-5 and with virus pictogram), in work environments where there is a risk of contamination or direct contact with persons who bear risk of infection. Masks having "NR" sign –which means "non-reusable"– must be provided.
  • Occupational health and safety professionals should provide hands-on trainings for efficient and correct use, maintenance and disposal of PPE, as well as waste management as per the Regulation on Controlling Medical Waste; employees' awareness should be expanded on hygiene-related matters.
  1. In case there is an employee at the workplace, who is confirmed or suspected to have COVID-19
  • Employers should isolate the respective employee from the other employees. S/he should be placed in a pre-determined confined space which would prevent the spread of COVID-19. S/he should be referred by getting in touch with the related health authority of the Ministry of Health. His/her waste at the workplace should be treated in accordance with the Regulation on Controlling Medical Waste.
  • If employee contracts COVID-19 during work, contracting COVID-19 might constitute "work accident".  Employers are required to notify the Social Security Institution regarding the work accidents and/or occupational diseases. Employers must make this notification within three business days (i) as of the realisation of accident, or (ii) as of the learning date of the incident from the healthcare servers or workplace doctor.
  • Employers have an obligation to ensure a safe and healthy workplace and protect their employees' wellbeing. In order to keep their employees safe and healthy, taking into account the level of contagiousness of COVID-19, employers should notify other employees that a co-worker has tested positive so that they can act to mitigate any potential negative effect in relation to COVID-19. That said, employers should not disclose more information than necessary. If it is necessary to reveal employee's name, the concerned employees should be informed in advance and their dignity and integrity should be protected. Also, the employer may disclose information about an employee to authorities for public health.
  • Likewise, employees have an obligation to inform the employer if they contract COVID-19. This is because employees are obliged to abstain from causing any harm to the safety of other employees. Employees are also required to cooperate with the employer as regards to occupational health and safety of the workplace. Therefore, employees must notify their employer if they contract COVID-19, bear a particular risk as to being infected by COVID-19 (such as being returned from abroad in 14 days or being in close communication with someone who turned out to be COVID-19 positive) or demonstrate COVID-19-like symptoms.
  • Lastly, if an employee test positive for COVID-19, Infectious Diseases Unit of the Provincial/District Health Directorate should be notified immediately.
  1. Meetings, Trainings and Travel
  • Employers should avoid face-to-face meetings and trainings; give preference to phone calls, email or virtual meetings; conduct remote trainings;
  • If face-to-face meetings/trainings are unavoidable, employers should minimise the number of people attending to the meetings/trainings; provide a room of an adequate size to ensure physical distancing (or hold the meeting outside); ensure compliance with social distancing and hygiene requirements; avoid the shaking of hands; promote opening windows and doors whenever possible to make sure the venue is well ventilated; pre-order sufficient supplies and materials, including tissues and hand sanitizer for all participants; display dispensers of alcohol-based hand rub prominently around the venue; encourage participants to cover their face with the bend of their elbow or a tissue if they cough or sneeze;
  • Employers organising a meeting/event should make sure all participants, caterers, and visitors at the event provide contact details and clearly state that their details will be shared with local public health authorities if any participant becomes ill with a suspected infectious disease (anyone who does not agree to this condition should be prevented from attending the event or meeting); retain the names and contact details of all participants for at least one month (this will help public health authorities trace people who may have been exposed to COVID-19 if one or more participants become ill shortly after the event);
  • If someone at the meeting or event was isolated as a suspected COVID-19 case, the organiser should inform participants. They should be advised to monitor themselves for symptoms for 14 days.
  • Travel should be avoided if not essential.

Footnote

1. Yeşim Tokgöz, Employers' Liabilities Arisen from the Occupational Health and Safety in Light of the Decisions of the Court of Cassation, February 2018, http://www.mondaq.com/turkey/x/682696/Health+Safety/Employers+Liabilities+Arisen+From+
The+Occupational+Health+And+Safety+In+Light+Of+The+Decisions+Of+The+Court+Of+Cassation accessed 2 April 2020.

This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in June 2020. A link to the full Legal Insight Quarterly may be found here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.