Coronavirus (Covid-19) Pandemic and Occupational Accidents
The Coronavirus (Covid-19) pandemic, declared a pandemic by the World Health Organization, has rapidly spread worldwide, bringing commercial and social life to a near standstill. In addition to certain measures taken in this regard, a voluntary quarantine practice has also been initiated in our country. However, there are also many sectors that continue production and operations. In these days when extraordinary measures are being taken to protect against this highly contagious disease, a number of legal issues have also arisen for both employees and employers. In this article, we will try to examine whether an employee's contracting of the coronavirus disease can be considered an occupational accident.
What is an occupational accident?
An occupational accident, defined within the scope of the Occupational Health and Safety Law No. 6331 and the Social Insurance and General Health Insurance Law No. 5510 in our legal system, is considered an event that occurs in one of the cases enumerated in the law and causes the death of the employee or renders the employee physically or mentally disabled.
Can the Coronavirus (Covid-19) Pandemic Be Evaluated Within the Scope of Occupational Accidents?
In our legal system, occupational accidents are regulated in the Social Insurance and General Health Insurance Law No. 5510; an occupational accident is defined as ''an event that occurs while the employee working as an insured person is present at the workplace, or while being sent to another location on duty due to work being carried out by the employer, or during travel to and from the work location in a vehicle provided by the employer, and that affects the insured person immediately or subsequently, rendering them physically/mentally disabled.''When examining past epidemics and their effects, not many examples of occupational accidents or occupational diseases were encountered; however, in 2009, the death of a truck driver due to the H1N1 virus, commonly known as swine flu, was evaluated as an occupational accident by the Court of Cassation. In the decision of the 21st Civil Chamber of the Court of Cassation, Case No. 2018/5018, Decision No. 2019/2931;...''In the present case, the decedent of the plaintiff, who was a truck driver, was sent on a trip to Ukraine by the defendant employer on November 26, 2009, entered Turkey on December 11, 2009, and according to the Forensic Medicine Institute report, the incubation period of the H1N1 virus ranges from 1-4 days, and if the complaints stated at the decedent's hospital visit on December 13, 2009, were the initial symptoms of the disease, the infection would have occurred 1-4 days before that date. Accordingly, it is clear that the death of the plaintiff's decedent, which subsequently occurred due to the H1N1 virus understood from the above-mentioned report to have been contracted during the trip to Ukraine carried out due to work conducted by the employer, should be accepted as an occupational accident.''... The appeal objections were accepted in this direction, and it was accepted that the death should be evaluated as an occupational accident. However, as can be understood from the decision, the point to note here is when and where the Covid-19 disease was transmitted to the employee. The determination of this situation becomes increasingly difficult with the rapid increase of the virus and the growing number of infected persons. Given this situation, employers must fulfill their obligations by taking the necessary precautions at workplaces in the face of the Covid-19 pandemic, which continues to have adverse effects worldwide. Otherwise, when evaluated in light of the Court of Cassation decision rendered during the previous epidemic period, if it is determined that the employee(s) contracted the Covid-19 pandemic due to work conducted by the employer, it will be possible for this situation to be evaluated as an occupational accident.
What Precautions Should the Employer Take Within the Scope of Coronavirus?
Due to the Covid-19 pandemic, the ''Stay Home'' calls made to avoid getting sick and, most importantly, to avoid carrying the disease have made it mandatory to take certain measures in working life, which forms the basis of our daily lives. In this framework, in addition to individual responsibilities, the obligation to provide necessary measures for employees working alongside them has come to the agenda for employers. In this context, for employers, primarily, if conditions and circumstances are suitable, ''evaluating the remote working system'' should be considered; however, for job groups where this cannot be considered; important measures such as ''postponing overseas travels, ensuring hygiene in the work environment, keeping materials such as masks and disinfectants available for employees to use, transitioning to a shift-based working system to prevent crowding in the work environment, and informing employees about the pandemic'' should be taken. In addition to these measures, employees may be granted paid or unpaid leave, or a transition to the short-time working scheme may be made.
An employer wishing to implement a paid leave scheme does not need the employees' approval for this. However, if an employee wishes to take paid leave, they must notify the employer of their request 1 month in advance, and the employer must approve this request.
An employer wishing to implement an unpaid leave scheme must convey the unpaid leave proposal to the employee, and the employee must give their approval within 6 days. Placing an employee on unpaid leave without obtaining their approval will be deemed as termination of the employment contract.
An employer wishing to transition to the short-time working scheme may apply to ISKUR (Turkish Employment Agency) when weekly working hours at the workplace have been temporarily reduced by at least one-third due to force majeure or when operations at the workplace have been suspended for four weeks without requiring continuity, and request income support for insured employees for a period not exceeding three months (which may be extended up to 6 months by Presidential decree) for the periods they are unable to work. Within the scope of the short-time working scheme, the services of short-time working allowance payment and General Health Insurance premium payment are provided to employees.
Furthermore, if the precautions that should be taken by the employer are not taken, or if the measures taken do not provide adequate protection, employees who face a serious danger within the scope of the Occupational Health and Safety Law No. 6331 also have the right to demand that the necessary measures be implemented. In such a situation, the employee may first apply to the occupational health and safety committee, or to the employer in places where no such committee exists, to request the implementation of measures; otherwise, the employee has the right to terminate the employment contract for just cause.
Coronavirus (Covid-19) Pandemic in Terms of Healthcare Workers
During the pandemic, physicians and other healthcare workers continue to provide services despite great difficulties. Due to both the speed of the pandemic's spread and the intensity of cases, as well as the inability to access personal protective equipment, the number of healthcare workers diagnosed with Covid-19 is increasing day by day. In the statement issued by the Turkish Medical Association (TTB) Central Council on March 30, 2020, it was stated that ''the diagnosis of Covid-19 in a healthcare worker constitutes an occupational accident or occupational disease, and events related to the disease should also be reported as occupational accidents.'' The statement also provided some concrete examples and stated that occupational accident notifications should be made even in cases where coughing, sneezing, or other body fluids from a patient splash onto the respiratory tract, eye mucosa, or open wounds of healthcare workers and persons providing services in the healthcare sector such as secretaries, security guards, cleaning staff, and drivers. In light of these statements, in cases of occupational accidents or occupational diseases arising from the Covid-19 pandemic, if employees suffer a loss of earning capacity in their profession, legal remedies may be pursued and compensation proceedings will come to the agenda accordingly. Trainee Att. Beste KARAKOC
