I. INTRODUCTION
According to the latest data published by the World Health Organisation (WHO) on 11.03.2020, the COVID-19 outbreak in China in the last two weeks has doubled its rate of increase to 13 times and more than 118,000 cases have been detected in 114 countries and 4,291 people have died.
In this context, since the COVID-19 outbreak poses a great risk in workplaces, which is one of the necessities of collective life, it is important for employers to be prepared and cautious in this context.
With this information note, the measures and precautions to be taken by the Employer before, during and after the outbreak within the scope of Labour Law and Occupational Health and Safety, the preparations to be made and the legal evaluation of the results of the outbreak before the Employer will be discussed.
II. RECOMMENDED MEASURES TO BE TAKEN IN THE CONTEXT OF THE COVID-19 PANDEMIC IN ACCORDANCE WITH THE EMPLOYER’S OBLIGATION TO PROVIDE A SAFE AND HEALTHY WORKPLACE
- Before the Pandemic – Preventive Measures
- The employer may hold an information meeting in order to eliminate threats to the health of employees and take precautions. In this information meeting, it will be useful to provide training on the stage of transmission of the virus, the treatment process and the measures to be taken in the workplace by the workplace physician or a different physician.
- The employer should disinfect the workplace, cafeteria, social areas, common areas and service vehicles as often as necessary to reduce the risk of outbreaks. The presence of appropriate masks, alcohol wipes, gloves, paper towels, thermometers, disinfectants and similar materials in work areas and common areas where employees can easily reach will minimise the spread of the epidemic.
- The employer should encourage employees to undergo a medical examination in risky and suspicious situations after the audit, taking into account the obligation not to harm the health and safety of other employees. However, employees have the right to refuse the examination. In risky and suspicious situations, the employer may place the employees who refuse the examination on paid leave to ensure the health and safety of other employees and the workplace.
- If possible, the employer should organise meetings inside and outside the workplace via teleconference or video conference, if not possible, with as few people as possible to reduce the risk.
- In cases where employees are required to travel to virus areas, it will be useful to introduce a “travel kit” application to be used at airports, during flights, in crowded environments, etc. in cases where such travel is determined to be inevitable by questioning whether such travel is necessary; in cases of travelling by passenger vehicles for domestic travel and by public transport (plane, bus, etc.) for international travel, subject to permission.
- In the event of a possible pandemic, it is not important for the employer to plan and share with employees, suppliers and customers how to proceed in order to ensure the execution and continuity of the business and to share it with the relevant persons in order not to disrupt the activities and to prevent damage to the employer company.
- It is important to make special arrangements for employees who are considered to have a low immune system against the pandemic, such as pregnant, elderly and chronically ill employees, to grant paid leave to the employee as a precautionary measure when necessary, or to prioritise these employees in remote working practices to the extent permitted by the nature of the work.
- During the pandemic – Risk Mitigation
- Within the scope of Occupational Health and Safety in the workplace, employees have an obligation not to harm other employees and the workplace. Within this framework, employees may be encouraged to share these issues with the Employer if they observe symptoms of the pandemic and are concerned as a result. However, although it is controversial for employees to share this information within the scope of the Personal Data Protection Law, employees should be encouraged to share the issues specified by the employer.
- In cases that clearly pose a risk, employees have a duty of loyalty to the employer and should notify the employer if the outbreak is confirmed.
- In risky and suspicious situations in the workplace or when the epidemic starts in the workplace, it will be appropriate for the purpose of maintaining the activities of the employees to switch to remote working within the scope of the Labour Law.
- In the event of a life-threatening situation as a result of the epidemic for employees in terms of Occupational Health and Safety in the workplace, it may be necessary to partially or completely stop workplace activities until the employer eliminates this situation. Within this framework, the salaries of the employees must be paid in cases where the employer sends the employees on leave or stops the activities.
III. LEGAL STATUS OF EMPLOYEES INFECTED IN THE WORKPLACE AS A RESULT OF THE COVID-19 OUTBREAK
Article 13 of the Social Security and General Health Insurance Law No. 5510 defines an occupational accident as an event that occurs while the employee is at the workplace, due to the work being carried out by the employer, during the time spent without performing his/her main job due to being sent to another place outside the workplace on duty, during the journey to and from the place where the work is carried out by a vehicle provided by the employer, and which immediately or subsequently disables the insured physically or mentally. The Court of Cassation, considering the aforementioned article, determined the same criteria as the element of work accident and determined that the employee who died after contracting the H1N1 virus while travelling upon the employer’s work request during the Swine Flu epidemic in 2009 suffered an occupational accident.
According to the decision of the 21st Civil Chamber of the Court of Cassation dated 15.04.2019 with the decision dated 2018/5018 Esas, 2019/2931 Karar and dated 15.04.2019, “Since the law defines an occupational accident as an event that makes the insured physically or mentally disabled immediately or later, it is possible that the effects of the event may continue for a while and increase over time and the result may occur later. In other words, the occupational accident may occur as a sudden event and the damage may be realised immediately, or the effects may occur later, as in the case of gas poisoning. Provided that there is an appropriate causal link between the subsequent damage and the event, the event should be accepted as an occupational accident. The fact that the law has characterised the occupational accident as an event that causes damage to the insured necessitates the causal link to be considered as an element of the occupational accident. However, what is sought here is the “appropriate causal link”, which should be understood as the coincidence of the fact of occurrence and the result in any of the cases and situations sought by the law, and the existence of any other restrictive condition should not be sought, even if it is not in the law… In the concrete case, the plaintiff’s deceased, who was a lorry driver, was sent to Ukraine by the defendant employer on …, entered Turkey on …, the Forensic Medicine Institute report stated that the incubation period of the H1N1 virus varies between 1-4 days, the deceased … It was reported that if the complaints he stated in his application to the hospital on the date of his application to the hospital were the initial symptoms of the disease, the transmission of the disease would have occurred 1-4 days before this date, accordingly, it is clear that the death of the plaintiff’s muris, which occurred later due to the H1N1 virus, which was understood from the scope of the above-mentioned report that he was infected during the expedition to Ukraine due to the work carried out by the employer, should be accepted as an occupational accident“.
Whether the situation of employees affected by the COVID-19 outbreak can be considered as a work accident is also on the agenda of employers. In this context, the employee or his/her relatives who have vital or material loss will be able to claim their rights by stating that their losses are based on “occupational accident” by citing the above-mentioned Article 13 of the Social Insurance and General Health Insurance Law No. 5510 and the Supreme Court decision as a precedent. For this reason, the employer, who is recommended to be extremely meticulous in occupational health and safety, should take all kinds of measures to prevent both health and rights losses.
