- 1 Legal Effects of Coronavirus (COVID-19) Outbreak
- 1.1 1- Is it possible to suspend the exercise of certain fundamental rights and freedoms, such as freedom of movement, due to Coronavirus?
- 1.2 2- Is there an obligation for individuals to report to the competent authorities any person suspected of having Coronavirus?
- 1.3 3- Do employees, who have Coronavirus or are at such a risk, have obligations to report their situation to their employer?
- 1.4 4- Does not complying with the measures taken by the competent authorities regarding the Coronavirus outbreak give rise to criminal responsibility?
- 1.5 5- Is it possible to apply any disciplinary sanctions against an employee who does not comply with the measures taken to combat the Coronavirus outbreak?
- 1.6 6- Can a person who carries the disease be criminally responsible if that person infects others?
- 1.7 7- Is it possible to process the health data of an employee who has Coronavirus?
- 1.8 8- Are employers entitled to ask their employees to obtain a medical report on whether they have Coronavirus?
- 1.9 9- Is working from home (“remote work”) possible due to the Coronavirus outbreak?
- 1.10 10- Is termination of activity possible due to the Coronavirus outbreak?
- 1.11 11- Can employers force their employees to take collective leave?
- 1.12 12- Can employers force their employees to take paid leave or unpaid leave due to the Coronavirus outbreak?
- 1.13 13- Can employers place an obligation on their employees to report on other employees, whom they suspect of having Coronavirus?
- 1.14 14- Can employers or employees rightfully terminate employment contracts due to the outbreak?
- 1.15 15- Can employees refuse to work due to the Coronavirus outbreak?
- 1.16 16- Can consumers withdraw from travel related service contracts (e.g. flight reservations, etc.) due to Coronavirus? Does it matter if the terms of the contract does not permit reneging on the contract or cancellation?
Coronavirus (COVID-19) related cases that originated first from China affected most of the world. As of last week, Turkey is also one of the affected countries. It is considered that the outbreak, declared as a “Pandemic” by the World Health Organization, may have a significant impact on the daily lives of people residing in Turkey in the near future. In this legal report, we aim to clarify the legal aspects of a number of issues that are likely to arise in the lives of people residing in Turkey, in the form of answers to frequently asked questions.
Article 15 of the Constitution of the Republic of Turkey provides that;
“In times of war, mobilization or a state of emergency, the exercise of fundamental rights and freedoms may be partially or entirely suspended or measures derogating from the guarantees embodied in the Constitution may be taken to the extent required by the exigencies of the situation, as long as obligations under international law are not violated.”
seen from this provision, the suspension of the exercise of certain fundamental rights and freedoms is possible if the competent authorities deem it necessary in times of a state of emergency, such as a pandemic. However, this power is limited by (i) the principle of proportionality and (ii) Turkey’s obligations under international law.
This issue is mainly regulated by the Public Health Law in Turkey numbered 1593, under the section titled “Combating infectious and epidemic diseases in the country”. This Law states that certain individuals are under a reporting obligation concerning certain diseases listed in Article 57 of the Law.
Those individuals listed as being under a reporting obligation according to this Law are “chief-doctors”, “owners or undersecretaries and managers of schools, factories, workshops, charities, trading houses and stores, hotels, pensions, hostelries, Turkish baths, prisons”, “janitors”, etc.
While the list of diseases to be reported in Article 57, naturally, does not include COVID-19, Article 64 of the same Law stipulates that a reporting obligation may be imposed for diseases other than those mentioned in Article 57, by the decision of the competent authority. Consequently, if the procedure foreseen in Article 64 is utilized by the competent authorities, reporting obligations may be imposed for cases of Coronavirus as well.
Article 19 of the Occupational Health and Safety Law numbered 6331, titled “Employees’ Liabilities”, provides the following;
“Employees are obliged not to endanger the health and safety of themselves and other employees who are affected by their actions or work in accordance with the training and the employer’s instructions they receive regarding occupational health and safety.”
Thus, employees, who are infected or at risk of infection, are obliged to immediately report the situation to the employer and ensure that necessary action is taken. This issue is also closely related to the duty of loyalty of employees to employers that arises from relevant regulations. Notwithstanding this clear obligation on the part of employees, it is also considered that it would be prudent for employers to instruct and remind their employees on this matter.
Article 195 of the Turkish Criminal Code numbered 5237, titled “Acting against the measures related to infectious diseases”, reads as follows;
“Any person who refuses to comply with the precautions imposed by the authorized bodies to quarantine a place, where an infected or dead person is located, is to be punished with imprisonment from two months to one year.”
In light of this provision, a person who acts against the quarantine measures taken in the context of the coronavirus outbreak may be imprisoned for up to one year.
The obligations of employees are stipulated in the Service Contract provisions of the Turkish Code of Obligations numbered 6098. Under these provisions, “to comply with the regulations and instructions” is an express obligation of employees. More precisely, Article 399 of the Code, titled “Complying with regulations and instructions”, reads, “The employer can make general arrangements and give special instructions related to work and behavior of employees in the workplace. Employees shall comply with these to the extent required by the principle of good faith.”.
In our opinion, the measures taken against the Coronavirus outbreak in workplaces must be deemed as part of the instructions given by the employer with the purpose of ensuring that the work is done in a healthy way. Notwithstanding this, it would be in any event more beneficial for the employer to include a specific provision to this effect in the Workplace Disciplinary Regulations, so that the employees who act against the Coronavirus measures can be subject to disciplinary action accordingly.
6- Can a person who carries the disease be criminally responsible if that person infects others?
A person, who is a carrier of the Coronavirus, may also be criminally liable depending on whether he/she is aware of his/her condition or not. In particular, a person, who causes the death or injury of others through his/her actions, such as “transmitting the Coronavirus to someone else knowingly and willfully” or “causing transmission by ignoring his/her obligations to prevent the virus from infecting others”, may be subject to criminal liability for “wilful murder”, “reckless killing”, “willful injury” or “reckless injury”. However, a clear establishment of the causal link between one’s actions and the outcome would be decisive in determining this liability.
According to the Law on the Protection of Personal Data numbered 6698, personal data relating to health are deemed to be personal data of a special nature and their processing conditions are specified in Article 6 of this Law. Pursuant to this provision, the health data of an employee may only be processed with the employee’s express consent.
However, the Law numbered 6698 also provides that personal health data may be processed without seeking express consent of the data subject, by the persons or authorized public institutions and organizations that are under a confidentiality obligation, for the purposes of protection of public health and the operation of preventive medicine, medical diagnosis, treatment and nursing services, as well as planning and management of health-care services.
Ensuring occupational health and safety is one of the basic duties of employers. However, it is considered that requiring a health report from an employee who does not show any symptoms of Coronavirus cannot be deemed as part of this duty. Instead, an employer is rather expected to inform the on-site doctor or other healthcare professionals and ensure that necessary precautions are taken, if he/she suspects that an employee is infected with Coronavirus.
Article 14 of Turkish Labor Law numbered 4857 envisages “on-call working and telecommuting (remote work)”. According to this provision, telecommuting is an employment relationship in writing according to which the employee performs his/her work at home or out of office via telecommunication devices. Therefore, it can be concluded that telecommuting will only be possible, if there is a written agreement between employer and employee.
Ensuring occupational health and safety is one of the most significant obligations of employers. Therefore, in the face of events that threaten occupational health and safety, termination of activity is possible depending on the extent of the emergency and/or threat. When the termination of activity is over, the substitution of the off days with the “compensatory work” regulated in the Turkish Labor Law numbered 4857 may be applied.
11- Can employers force their employees to take collective leave?
Pursuant to Article 10 of the Paid Annual Leave Regulation entitled “collective leave”, the employer or representative of the employer may impose collective leave covering all or part of the employees in the period from the beginning of April until the end of October. It is also stated in the same Article that the periods of collective leave can also include the employees who are not yet entitled to any paid annual leave. In light of this provision, within the time-frame mentioned above, it is possible for employers to impose a collective leave on their employees. Collective leaves can later be deducted from the paid annual leave.
It is not possible for employers to force their employees to take unpaid leave without their consent. This is because unpaid leave can only be taken, if there is a mutual agreement between the employee and his/her employer. However, an employer may unilaterally decide for his/her employees to take paid leave based on his/her managerial authority to decide on the time of paid leave.
According to the relevant legislation, ensuring occupational health and safety is one of the basic responsibilities of both employers and employees. Therefore, it can be expected from employees to inform their employers about others they suspect of having Coronavirus. However, it will not be acceptable for employers to give mandatory reporting instructions to their employees, even in the case of the Coronavirus outbreak.
14- Can employers or employees rightfully terminate employment contracts due to the outbreak?
The grounds for “rightful termination of employment contract” are stipulated in Articles 24 and 25 of the Labor Law numbered 4857. According to Article 24 entitled “employee’s right to terminate the contract for just cause”, “the employee is entitled to terminate the contract, whether for a definite or an indefinite period, before its expiry or without having to observe the specified notice periods, if the employer, his representative or another employee who is constantly near the employee and with whom he is in direct contact is suffering from an infectious disease or a disease incompatible with the performance of his duties”.
Moreover, according to the same Article, the employee will have the same right in a case of force majeure necessitating the suspension of work for more than one week in the establishment where the employee is working.
On the other hand, in Article 25 of the Law, which regulates “the termination of the employment contract by the initiative of the employer” it is provided that, “the employer may terminate the contract, whether for a definite or indefinite period, before its expiry or without having to comply with the prescribed notice periods, if the Health Committee has determined that the suffering is incurable and incompatible with the performance of the employee’s duties.”.
It must be noted, however, that each case should be meticulously evaluated within its own terms and conditions because the principle of “dismissal as a last resort” applies in labor law and practice.
Article 13 of the Occupational Health and Safety Law numbered 6331, entitled “Right to Abstain from Work”, provides employees with the right to file an application to the competent authorities requesting a determination of the present hazard and measures for emergency intervention.
In this case, if an employee’s request is accepted by the competent authorities, he/she does not have to work and his/her rights for the period he abstains from work is also reserved. Moreover, according to the same Article, in the event of a serious, imminent and unavoidable danger employees do not even need to file a request to the competent authorities to abstain from work.
In short, depending on the degree of the Coronavirus outbreak, it is possible for employees to abstain from work with the approval of the competent authorities or on their own motion. Employees should, however, carefully evaluate whether the required conditions are met before acting to abstain from work on their own motion. This is because pursuant to Article 25 of the Labor Law numbered 4857, the employment contract may be terminated by the initiative of the employer, if the employee refuses, after being warned, to perform his duties.
According to the relevant provisions of the Law on Consumer Protection numbered 6502, consumers have the right to withdraw from purchased service contracts at any time before the beginning of the performance of the service, provided that they have not used the services.
As a result, terms which state that there is no right of withdrawal or cancellation –which are also deemed as “unfair terms”- have no validity as they are in violation of the legislation protecting consumers. In the event that the consumers’ requests to renege on their contracts are rejected by service providers, consumers will have the right to take legal action.