Various measures have been taken in our daily and social lives to stop the spread of the coronavirus, which was declared a pandemic by the World Health Organization. In public institutions, measures such as shortening working hours or implementing work with fewer people/in shifts have been taken to prevent operations from completely stopping. In the private sector, with the circular issued by the Ministry of Interior, it was decided to temporarily suspend the activities of many establishments where people gather collectively, such as cafes, restaurants, theaters, cinemas, etc., throughout the country. Apart from this, recommendations continue to be given for working from home in sectors where it is possible and for citizens not to go outside unless necessary.
In addition to taking individual measures to stop the spread of the disease and protect public health, employers also need to take certain measures. The situation of employees working at many workplaces that have had to suspend their activities is a matter of curiosity. In this article, we will try to discuss the measures employers can take and their responsibilities in light of recent developments.
1-Coronavirus as a Force Majeure and the Employer's Obligation to Pay Wages
An employment contract is a contract consisting of the employee's undertaking to perform work in a dependent manner and the employer's undertaking to pay wages. So, does the obligation to pay wages continue during the period when the employer has been forced to suspend operations?
The Labor Law stipulates that in the event of a force majeure that would require work to stop for more than one week at the workplace where the employee works, or that would prevent the employee from working at the workplace for more than one week, the employee who is unable to work or is not put to work shall be paid half wages for each day during this waiting period for up to one week.
In this case, from the perspective of both the employee and the employer, the employer's compulsory suspension of work due to the danger of coronavirus, which is a pandemic disease, can be accepted as a force majeure that would require work to stop and prevent the employee from working. In this case, the employee is paid half wages for the first week during which work has stopped. If the force majeure does not cease during this one-week period and the contract is not terminated by the parties, the suspension of the contract will continue and the employer's obligation to pay wages will cease. In other words, the employer's obligation to pay half wages during the non-working period is limited to one week only.
2-Paid Leave - Unpaid Leave
The principle in Labor Law is paid leave. Unpaid leave is an exception, and in practice, we see that employees are forced to take unpaid leave against their will when workplaces temporarily suspend their activities. However, the provisions regarding unpaid leave in the law are regulated for cases such as travel leave and maternity, etc., and constitute a right granted to the employee. Outside these cases regulated by law, the employee's right to unpaid leave will not arise. Since unpaid leave is essentially a right granted to the employee and is possible only for certain cases, it is not possible for the employer to place the employee on unpaid leave by a unilateral declaration of will. However, as an exception, unpaid leave may be possible through the mutual will of the parties. For this, the employee's request or the employee's written affirmative response within 6 days to the employer's written unpaid leave offer is required. If the employer places the employee on unpaid leave despite the employee's lack of request or refusal of the employer's offer, this will be deemed as termination of the employment contract without just cause, in which case the employer will be liable to pay severance and notice compensation, and if the conditions are met, the employee may also file a reinstatement lawsuit.
Additionally, if the employee has the opportunity to work remotely and receive full wages, it would be more appropriate to evaluate this option first.
3-Compensatory Work
According to the Labor Law, in cases where work stops due to compelling reasons, or where work at the workplace is performed significantly below normal working hours or completely suspended, the work to be performed to compensate for the periods the employee did not work shall be compensatory work. Therefore, it will be possible for an employer who has had to suspend work or reduce working hours within the scope of measures taken due to coronavirus to have compensatory work performed for the shortfall periods. Similarly, compensatory work may also be required of an employee who wishes to self-isolate due to coronavirus for the periods they did not work. Compensatory work must be performed within 2 months following the elimination of the compelling reason and the commencement of the normal working period at the workplace. Within the scope of measures taken regarding coronavirus, this 2-month period has been extended to 4 months.
4-Part-Time Work
Part-time work is work performed up to two-thirds of the comparable full-time work performed under a full-time employment contract at the workplace. In the face of such a pandemic threatening public health, it may also be possible for the employer to take measures by transitioning to a part-time work method.
5-Short-Time Working Scheme and Short-Time Working Allowance
Short-time working is a scheme that provides income support to insured employees for the period they are unable to work, for a period not exceeding three months at the workplace, in cases where weekly working hours at the workplace are temporarily reduced by at least one-third due to general economic, sectoral, regional crises, or force majeure, or where operations at the workplace are fully or partially suspended for at least four weeks without requiring continuity. This period may be extended up to 6 months by Presidential decree. Within this scope, in addition to income support, the service of payment of General Health Insurance premiums is also provided to employees.
Periodic situations arising from external effects that do not originate from the employer's own management and control, that cannot be foreseen, that consequently cannot be eliminated, and that result in the temporary reduction of working hours or the full or partial suspension of operations, as well as situations such as earthquakes, fires, floods, landslides, epidemics, and mobilization, are accepted as force majeure for the purposes of the short-time working scheme. In this regard, taking into account the possible effects of the novel Coronavirus (Covid-19), the short-time working scheme has been initiated within the scope of "force majeure arising from periodic situations caused by external effects." Employers wishing to benefit from the short-time working scheme on the grounds that they have been adversely affected by the coronavirus may apply to ISKUR (Turkish Employment Agency) with supporting evidence.
6-Utilization of Annual Leave
The request to use annual leave, as a rule, comes from the employee. However, the employer is not bound by the calendar the employee wishes to use for annual leave. The annual leave calendar may be arranged by the employer, taking into account the employee's request, the dates other employees will use their annual leave, and the work situation. The employer has managerial authority in this regard. Additionally, the Labor Law also stipulates that fifteen days of the time the employee spends without working (provided that the employee resumes work) due to work being continuously suspended for more than one week at the workplace due to force majeure shall be counted as annual leave.
In this case, during this period when workplaces are closed due to coronavirus, social isolation is of vital importance, and markets are experiencing stagnation, it is possible for the employer to request the utilization of annual leave within the scope of measures to be taken, and it would be reasonable for the employee to respond positively to this request.
7-Termination of Employment Contract by the Employer
We will try to examine this issue from two perspectives.
7.1-In the event the employee cannot go to work due to coronavirus;
Here, it will be necessary to make separate assessments for persons who have contracted the coronavirus disease and for persons subject to curfew within the scope of measures taken due to coronavirus.
- In the event that the employee's working at the workplace is deemed objectionable due to contracting the coronavirus disease - noting that quarantine is currently applied to persons diagnosed with coronavirus and those who have been in contact with them - can this situation constitute grounds for termination of the employment contract?
The Labor Law subjects the termination of the employment contract due to the employee's health problems to certain conditions. According to the legal regulation; if the treatment period exceeds the notice period by 6 weeks due to the employee's illness not caused by their own fault, the employer's right to terminate for just cause will arise. In this case, the employer will not have an obligation to comply with the notification requirement or pay notice compensation, but will be required to pay severance compensation.
- In the event the employee is among those subject to a curfew within the scope of measures taken due to coronavirus, can this situation constitute grounds for termination of the employment contract?
We explained above that coronavirus can be accepted as a force majeure under the Labor Law. According to the law, if the employee is unable to go to work for more than 1 week due to a pandemic disease, this situation will be accepted as force majeure for the employer and will constitute just cause for termination. In this case, pursuant to measures taken to combat coronavirus, it may be accepted that the employment contracts of individuals over 65 years of age and individuals with chronic illnesses, whose going outside has been prohibited by the state, may be terminated for just cause due to the existence of force majeure. However, this does not mean that the employer can immediately terminate the employment contract. First, half wages must be paid to the employee for a period of one week. If the force majeure has not ceased at the end of this period, the employer has the right to terminate. In this case as well, the employer will not have an obligation to comply with the notification requirement or pay notice compensation, but will be required to pay severance compensation.
7.2-In the event the workplace suspends its operations;
Within the scope of measures taken against coronavirus, many workplaces have suspended their activities or transitioned to working from home. The measures taken have deeply affected commercial and economic life. Cash flow has stopped for many companies. However, despite the announced support packages, many expense items such as workplace rents, bills, taxes, etc., continue to concern employers. Some employers have found the solution in laying off employees. So, does this situation constitute just cause for employers?
In labor law, the principle of maintaining the employment contract as much as possible and termination as a last resort prevails. Therefore, the suspension of workplace operations does not, as a rule, grant the employer the right to terminate.
Additionally, we believe that whether the suspension of operations at the workplace due to coronavirus is mandatory or not, and why the enterprise made such a decision, should be examined separately for each enterprise and sector. Because, according to Court of Cassation decisions, the reasons preventing the employee from working must arise in the employee's environment. Reasons arising from the workplace that prevent work cannot be evaluated within this scope. For example, the closure of the workplace will not be considered a force majeure. Market stagnation alone cannot be accepted as force majeure either. However, situations such as the interruption of transportation due to natural events such as floods, snow, earthquakes, martial law, and quarantine due to epidemic diseases are force majeure. There is no doubt that coronavirus is an epidemic disease. However, the quarantine application mentioned in Court of Cassation decisions is not yet in question due to coronavirus. Therefore, we believe that whether the workplace is among those closed by the Ministry of Interior's circular should be evaluated separately. In this case, whether the suspension of operations due to coronavirus constitutes force majeure/just cause for termination is debatable and must be evaluated separately for each enterprise.
Resorting to the termination of the employment contract should be applied as a last resort. In our opinion, it will be necessary to examine what measures the employer who terminated the employment contract citing coronavirus took before resorting to this path. In this case, we believe that it will be evaluated whether the employer resorted to measures such as paying half wages, utilizing annual leave, reducing working hours, benefiting from the short-time working scheme, and offering unpaid leave to the employee, as we mentioned above. Furthermore, even if it is accepted that the employer has the right to terminate the employment contract for force majeure/valid reasons, this right must be exercised in accordance with the principle of good faith.
In the event it is accepted that the employee's employment contract has been terminated due to force majeure, the employer has no obligation to comply with the notification requirement or pay notice compensation. However, severance compensation must be paid.
8-Termination of Employment Contract by the Employee
The employee may terminate the employment contract for just cause in the event of force majeure that would require work to stop for more than one week at the workplace. However, for the employee to terminate the employment contract for this reason, the one-week period must have elapsed. If the employee terminates the employment contract before the one-week period, it cannot be considered a termination for just cause.
Additionally, if the disease is detected in a person at the workplace, it should be accepted that employees who work in the same environment/are in contact with this person may resort to termination for just cause, taking into account the 14-day observation period.
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Attorney Figen SIMSEK 