Topic: The Effect of Coronavirus (COVID-19) on Businesses and Legal Reviews
- WHAT IS CORONAVIRUS (COVID-19)?
Coronavirus is a large family of viruses that cause a variety of diseases, from more serious diseases such as Middle East Respiratory Syndrome (MERS-CoV) and Severe Acute Respiratory Syndrome (Severe Acute Respiratory Syndrome, SARS-CoV). Coronavirus (COVID-19); It is on the agenda as a disease that threatens human health and causes deaths worldwide, especially in China, Iran and Italy. There is no treatment method developed against this disease yet. In addition to fever and cough, people with severe disease may experience shortness of breath, pneumonia and kidney failure. The coronavirus has been declared a pandemic by the World Health Organization. Pandemics or pandemic diseases are the general names given to epidemics that spread and show their effects in a wide area such as a continent or even the entire world.
Since coronavirus is a contagious epidemic, it has commercial, financial and economic effects worldwide. However, due to the low number of cases in our country and the disease is not at the epidemic level, it has not been described as “general epidemic and force majeure” yet.
Since the restriction of international travel and trade, closing the borders and the blocking of flights can have major commercial consequences, the countries that decide to restrict this issue should base their decisions on concrete data.
- THE LEGAL EFFECTS OF THE CORONAVIRUS
- EFFECTS OF CORONAVIRUS ON COMMERCIAL LAW
If a party of the contract fails to fulfill its obligations due to the coronavirus, it is only possible to put forward the coronavirus outbreak as a reason for the official decisions of the outbreak. Other reasons such as costly fulfillment of contract conditions, economic problems will not be qualified as force majeure that will prevent the performance of the contract.
Applications such as quarantine, import-export bans and closing borders may constitute a force majeure in the performance of contracts. Force majeure is the fact that the performance of contract acts such as natural disasters such as fire, earthquake, and epidemic diseases in contracts becomes impossible outside the control of the parties. Whether the reasons for the failure of the parties to perform the contract acts constitute a force majeure, the nature of the contract concluded, the nature of the debt and the performance of the actions should be evaluated in consideration. For this reason, it would not be correct to say that the Coronavirus is a force majeure for all commercial relations. It is important for the parties to inform each other in writing in terms of commercial relations, where the coronavirus will be considered as a force majeure and the possibility of causing the termination of contracts.
- EFFECTS OF CORONAVIRUS ON JOB LAW
- Regarding Employer’s Authority to Control Workers’ Health Status Evaluation
The worker is obliged not to behave in a way to endanger occupational health and safety at the workplace. This situation is evaluated within the framework of the care and loyalty obligation of the worker in the relation of labor law. For this reason, employees who have positive coronavirus tests or show suspicious symptoms should report this to their employers. In this sense, as an employer, it can be requested from employees to make a statement of suspicious symptoms. However, in accordance with the Personal Data Protection Law No. 6698 (” KVKK ”), employee information showing signs of illness or caught disease should not be shared at the workplace.
- Termination of the Employment Contract of the Employee Who Has Coronavirus Disease Without An Official Statement That Will Prevent The Performance Of The Job Across The Country
It is a legal obligation for the patients caught in coronavirus to be kept in quarantine for as long as the illness continues, in accordance with the General Sanitary Law, article 76, article 73. In this case, unless the absence periods shown in Article 25 of Labor Law No. 4857 (“Labor Law”) are exceeded in article 25 / I-b, item 2, the absence of the worker will not constitute a justified or valid reason for termination of the employment contract. In case of a long-term and uninterrupted report of the worker, the right granted to the employer if the reporting period exceeds the notice period by 6 weeks is explained in the article I of the Law titled Health Reasons;
“… The right of the employee to terminate the employment contract without notice for the employer in cases such as illness, accident, birth and pregnancy; according to the specified working time of the worker at the workplace after the specified conditions exceed the six-week notification periods. In maternity and pregnancy situations, this period starts at the end of the period in article 74… ”
Considering the notification periods listed in the 17th article of the Labor Law, it will be accepted that if the report period exceeds the time calculated according to the working time of the worker in the workplace, a just cause has occurred.
- In Case Of An Official Statement Preventing Workers From Coming To Their Workplaces
Since coronavirus has not been declared as a general epidemic in our country, it will not be possible to stop employer activities as of now. Depending on the degree of danger presented to the employees, it may be possible to stop the activities in the workplace partially or completely. If the workplace activities are stopped partially or completely without any official explanation, the employer’s obligation to pay wages will continue.
If official measures such as curfew, quarantine, foreign exit ban are taken due to coronavirus, this situation will enter into compelling reasons mentioned in the clauses 3 and 24 of the Labor Law and in the 40th article of the Labor Law; As stated in the words “Employees who cannot work or are not employed due to the compelling reasons shown in the subparagraphs (III) of Articles 24 and 25, half wages are paid for each day for up to one week for each employee within a period of one week.” will be paid. Employer’s work contract, Employment Law
In accordance with 25 / III, he has the right to terminate for good reason. In this case, if the worker deserves severance pay will be paid. The employer can wait for the compelling reason to disappear at the end of a week, by not exercising his right of termination. However, he is not obliged to pay any wages to the worker during this period. However, if the worker wants to continue working in case the compelling reason ends, the employer must also employ the worker.
In cases of challenging reasons, the employer may benefit from the temporary leave of workers, instead of dismissing workers, and that this period is considered as a temporary unemployment, and that workers are given short employment allowance from unemployment insurance. Challenging in Article 3 of the Regulation on Short Work and Short Work Allowance
reasons: “It is not caused by the employer’s own referral and administration, cannot be predicted,
As a consequence, situations such as earthquake, fire, flood, epidemic disease, mobilization resulting from external effects, which cannot be eliminated, resulting in temporarily decreasing the working time or stopping the activity completely or partially ”.
Employers can request free leave for workers if accepted by the workers in writing. However, the Court of Cassation is of the opinion that if the employer wishes to leave the worker for unpaid leave, the employee has the right to terminate for the right reason or the request made by the employer should be considered as the termination will.
III. Other Legal Problems Employers Can Face
- Employee Refrain from Coming to Work
If no formal decision is made at the country, if a serious and imminent danger arises in the workplace, the employees may refrain from working until the danger is eliminated. In this case, even if the job is stopped by the employer, the salary must be paid. In such cases, it may be possible to offer a free leave option to the employee as an employer, employ the employer, if any, to provide paid leave, work from home according to the nature of the work to be done or compensate with the end of the danger.
- Employee Avoiding Business Travel
The fact that the coronavirus, which is the subject of this information note, causes the death of thousands of people worldwide, and precautionary measures in many countries reveal the extent of the problem. In this case, the employees who do not want to participate in their travels abroad will not be forced to do so in terms of both their own health and public health. In case such a coercion is made, even the termination of the employee’s employment for a just reason may be in question. However, the coronavirus seen in our country is not an epidemic as of the date of this information note and no explanation has been made by officials in this direction. For this reason, the employee who does not want to participate in a business trip on the basis of the province studied or other provinces where the coronavirus does not pose a hazard, due to the fact that the labor contract insists on not performing the duties he / she is assigned to do even though he / she is reminded about it. We believe that it can be terminated with the condition of written notification.
- Employer’s Demand for Doctorate Examination of Employees
Employers cannot force their employees to undergo a medical examination. Employee information for the inspection will also not be shared under the KVKK. Employees who show suspicious symptoms may be advised to contact their healthcare professional or doctor.
- Employer’s Demand for Workers Wearing Masks
According to the 1st paragraph of the 4th article of the Occupational Health and Safety Law No. 6331, the general obligation of the employer is titled; “The employer is obliged to ensure the occupational health and safety of the employees and within this framework; a) It works to take all kinds of precautions, including prevention of occupational risks, education and information, to organize the organization, to provide the necessary tools and equipment, to adapt the health and safety measures to changing conditions and to improve the current situation. b) It monitors whether the occupational health and safety measures taken in the workplace are followed, checks them and ensures that nonconformities are eliminated. c) Performs or makes risk assessments. ç) While assigning duties to the employee, it takes into consideration the suitability of the employee in terms of health and safety. d) Takes the necessary precautions to ensure that employees, other than those given sufficient information and instructions, do not enter places where there is vital and special danger. ” It is called. Similarly, in the relevant articles of the Occupational Health and Safety Law No. 6331, employers are subjected to the obligation not to endanger the health and safety of employees.
In the light of these legislative arrangements, it is concluded that the employer should take adequate measures to prevent or prevent the dangers within the scope of occupational health and safety by observing the health status of each employee.
In this sense, wearing a mask may be a precaution to be taken by employers in order to prevent the spread of the epidemic and prevent the health status of employees to be affected. In this case, workers will be obliged to wear masks. Employees who refuse to wear masks may terminate the employment contract they have concluded with the employee in accordance with the Labor Law 25 / II / i for good reason:
or threatening the safety of the business due to its negligence, and damaging and loss of the workplace, machinery or equipment or other goods and materials that are or are not the property of the workplace at the cost of their thirty-day wages. ”
- Paid Leave, Free Leave, Compensatory Work and Remote Work Request
- a) In terms of paid leave
In accordance with the 8th article of the Annual Paid Leave Regulation (” Regulation ”) titled “Request and Issuance of Leave”, the employer does not depend on the employee’s annual leave request.
Within the scope of our explanations above, it is lawful for the employer to make employees leave paid due to the effects of the Coronavirus. However, annual paid leaves will have to be offset from employees’ annual leaves. Due to the coronavirus effect, it may also be possible for employers to provide employees with mass leave in accordance with the 11th article entitled “Collective Leave”.
“In the case of collective leave, the employer or the employer representative can exclude sufficient number of workers for compulsory situations such as the protection of the workplace, maintenance, preparation, cleaning or security of the tools, equipment, or machinery in the workplace. In this case, the annual leave of those who are given is given at any time before or after the collective leave period. ““
- b) Free Permission Perspective
If the will of the worker and employer is in agreement, the worker can use the right to unpaid leave.
- c) In terms of compensatory work
In accordance with the 7th article of the Labor Law and Regulation on Working Times, It should be done within 2 months, due to the fact that the working date is announced clearly, the total daily work of the employees should not exceed 11 hours when the work is terminated, the compensatory working time should not be more than 3 hours, and it should not be done on holidays.
- D) From a Remote Working Perspective
In the 14th article of the Labor Law titled “Working on Call and Working Remotely”; “Working remotely; It is the work relationship established in writing and based on the principle that the worker fulfills his work at home or outside the workplace with technological communication tools within the scope of the work organization created by the employer. ” It was expressed as. In this framework, the employer will be able to request employees who are eligible to work remotely before they come to work. It is important to make a written notification to the employees and to state that their rights will be protected before the remote working procedure is implemented.