The Employee's Right to Refrain from Working Due to Coronavirus

1-Employer's Obligations Regarding Occupational Health and Safety

Employers are obligated to ensure the work-related health and safety of their employees. In this framework, for example; the necessary equipment and tools for occupational health and safety must be provided, health and safety measures must be adapted to changing conditions and efforts must be made to improve the current situation, risk assessments must be conducted or commissioned, the employee's health and safety suitability for the job must be taken into account when assigning tasks, and necessary measures must be taken to prevent employees other than those who have been given sufficient information and instructions from entering areas with vital and special hazards. In addition to all measures taken by the employer, compliance with the measures must also be monitored. Otherwise, the employee may exercise the right to refrain from working or terminate the contract for just cause due to failure to ensure occupational health and safety.

2-Employer's Obligations in the Context of Combating Coronavirus

Despite all existing measures, the spread rate of the coronavirus pandemic continues to increase day by day. This increase has necessitated the adoption of new measures to adapt health and safety measures at workplaces to changing conditions. For these reasons, the Ministry of Family, Labor and Social Services published a guideline on March 28, 2020, regarding the measures to be taken in workplaces in the context of combating coronavirus. The guideline mentioned new measures such as developing a working model suitable for maintaining social distancing, which should be particularly observed during the pandemic, providing employees with disposable tissues and separate waste bags for biological waste, and routine cleaning and disinfection of surfaces, equipment, and other elements of the work environment. The measures mentioned in the Ministry's guideline must be immediately implemented by employers.

3-Employee's Right to Refrain from Working

If the failure to implement necessary measures to prevent the spread of the coronavirus pandemic poses an imminent and serious danger to the employee's work, health, and life, the employee may exercise the ''right to refrain from working'' pursuant to both the Occupational Health and Safety Law No. 6331 and the International Labour Convention on Occupational Safety and Health and the Working Environment. The conditions required for the exercise of this right are regulated in Article 13 of the Occupational Health and Safety Law No. 6331. Accordingly;

• Employees who face a serious and imminent danger of contracting the coronavirus pandemic may apply to the occupational health and safety committee, or to the employer in workplaces where no such committee exists, to request that the situation be determined and a decision be made to take the necessary measures.

For example, employees working in a supermarket may request the provision of gloves and masks for use when serving customers. Upon request, the committee must convene urgently to make the necessary decision, and the employer must immediately make their decision and record the situation in a written report. The decision must be communicated to the employee and the employee representative in writing.

• If the committee or the employer makes a decision in accordance with the employee's request, the employee may refrain from working until the necessary measures are taken.

The wages of employees during the period they refrain from working and their other rights arising from laws and the employment contract are reserved.

• In situations where the serious and imminent danger is unavoidable, employees may leave the workplace or the hazardous area and proceed to the designated safe location without the need to apply to the occupational health and safety committee or the employer.

We know that in order to stop the spread of coronavirus, persons diagnosed and those who have been in contact with them are quarantined or asked to self-isolate. For example, if an employee is expected to work in the same environment, without any precautions being taken, with an employee who is known to have symptoms of or has been diagnosed with the coronavirus pandemic, the employee may immediately leave the workplace. Employees' rights cannot be restricted due to such actions.

• Employees working under employment contracts may terminate their employment contracts for just cause in situations where necessary measures are not taken despite their requests.

Public personnel working under collective agreements or collective labor agreements are deemed to have actually worked during the period they did not work due to the failure to take necessary measures despite their requests.

• The employer may suspend work considering the vital dangers that may arise at the workplace due to the coronavirus pandemic.

However, in the event work is suspended, the employer is obligated to pay wages to employees who are left jobless due to the suspension of work or to assign them other work appropriate to their profession or situation without any reduction in their wages. In conclusion; considering the relevant legal regulations and the mode and speed of coronavirus spread, it should be accepted that the employee may exercise the right to refrain from working if the employer fails to take the necessary precautions. To access the Guideline Published by the Ministry of Family, Labor and Social Services Regarding Measures to Be Taken Against Coronavirus (COVID-19) in Workplaces, click here. For the Legal Dimensions, Legislation, and Latest Developments Regarding the Coronavirus Pandemic, click here. Trainee Att. Kevser TURAN