To whom it may concern,
As in many countries, the loss of life and the number of cases continue to increase in our country due to the COVID-19 coronavirus outbreak, which is extremely dangerous for human life.
COVID-19, which was detected in our country on 11 March 2020, led to 1529 cases and 37 deaths as of 24 March 2020.
Because of its contagious nature and the increase of cases resulting in death, Turkish Ministry of Internal Affairs published a Circular on Curfew for 65 Years and Above and Those with Chronic Illness on 21.03.2020 and an Additional Circular on 22.03.2020. As a result, curfew has been put into effect for those 65 years and older and those with chronic illness.
In this legal memorandum; the legal basis and the details of the curfew will be examined first within the Circulars published and then the reflection of this regulation on employee and employer relations will be analysed.
In the Circular which sent by Turkish Ministry of Internal Affairs to 81 provincial governorships and entered into the force on 21.03.2020 at 24:00; people aged 65 years and above and those with low immune system and chronic lung disease, asthma, COPD, cardiovascular disease, kidney, hypertension and liver disease and those who use medications that disrupt the immune system will be subject to curfew in terms of going out of their residence, traveling in open areas/parks and travelling with public transportation.
The provincial governors charged with applying the curfew will implement necessary measures according to;
• Article 11/C of the Law for Provincial Administration
• Article 27 and 72/1 of the Turkish Public Health Law
An Additional Circular to the aforementioned Circular, which was put into effect by the Turkish Ministry of Internal Affairs for those 65 years and older and those with chronic illnesses, was sent to 81 provincial governorships on March 22 at 01.00. With the Additional Circular sent to the governorates, the exceptions to be introduced within the scope of the curfew imposed on people aged 65 and over and those with chronic illnesses are specified.
In this context, by regarding the quality of the public service they carry out, the urgency in the current situation, whose services will be needed in order to ensure the continuity of the public service and by exempting those with cancer and organ transplantation; healthcare professionals, mayors, provincial directors, social service institutions officers and other public servants/public service providers along with pharmacists are listed within the exception to the aforementioned curfew.
In addition, it is indicated that the citizens who are under the scope of the Circulars and are obliged to travel / leave the house, especially those who are in a place other than their own residence within the date of entry into force of the curfew, will forward their requests through the emergency call lines. In this direction; it is regulated that these requests will be followed by communication centres established in the governorships/district governorships, travel documents will be prepared by specifying the open identities of those who will travel and these travel documents will be delivered to the demanders by law enforcement units.
In the Circular of 21.03.2020, it was stated that the curfew will be in question for those with low immune system and chronic lung disease, asthma, COPD, cardiovascular disease, kidney, hypertension and liver disease and those who use medications that disrupt the immune system.
However, considering the nature and importance of the issue, we consider that apart from the diseases listed in the Circular published, people who have diseases that are medically and by the doctor's report accepted as chronical should be accepted within this scope.
In this context, it will be possible for employees with chronic diseases to submit their prescriptions showing that they are constantly using medication within the scope of chronic disease treatment or clinical doctor reports showing that they have the disease to the employer.
Due to the curfew imposed in accordance with Circulars, employees aged 65 and over and employees with chronic illness will not be able to perform their work at workplace.
It is important to state that during the aforementioned curfew, the labour contracts of the employees who could not continue to their work cannot be terminated according to the article 25/II-g of the Turkish Labour Law which states; “If, without the employer’s permission or a good reason, the employee is absent from work for two consecutive days, or twice in one month on the working day following a rest day or on three working days in any month”. In the contrary case, the termination due to absence will be an unjust termination.
Employers will be able to grant the employee an administrative paid leave during the curfew. In addition, due to the fact that the curfew in question is considered as a force majeure, suspension and termination of the labour contract may come to the agenda.
In this case; force majeures are events such as fire, earthquake, and epidemic disease that occur around the employee, not at the workplace and develop beyond the will of the employee. As a result of these events, the employee is unable to fulfil his debt without any fault due to the temporary impossibility of performance. In the same way, in its decision dated 18.09.2019, numbered 2016/9116 E. and 2019/16141 K., 9th Civil Chamber of Turkish Court of Cassation considered the quarantine due to the epidemic as a force majeure:
“The reasons that prevent the employee from working must occur around the employee. The reasons arising from the workplace and preventing work are not covered by this article. For example, closing the workplace is not a force majeure. However, conditions such as cessation of transportation due to natural events such as flood, snow, earthquake and quarantine due to epidemic disease are force majeure.”
In this respect, the curfew in question, which develops beyond the will of the employee and prevents the employee from continuing to work, can be described as a force majeure. In this context, in case of a force majeure preventing the work of the employee, the labour contract is suspended for the duration of the force majeure. In accordance with the article 40 of the Turkish Labour Law, the employer is obliged to pay half wage every day to the employee within the one-week period.
However, if the force majeure causes the employee to fail to continue his work for more than a week, the employer will have the opportunity to terminate the labour contract for the just cause, as well as the possibility of waiting for the discontinuation of the force majeure without terminating the labour contract and without making any payment to the employee.
The force majeure that causes the employee not to continue his work must continue for at least a week in order for the origination of the right of termination for a just cause in accordance with the article 25 of the Turkish Labour Law. In this case, severance pay will be paid to the employee if it is entitled.
However, the employer is not obliged to pay any wages to the employee during this period. During the period in question, the suspension will continue, but as long as the force majeure persists, the employer's right to terminate will remain available. However, if the force majeure discontinues, the employee must continue to work and the employer must put the employee back to the work.
In the case of submission of prescriptions or clinical reports of employees who are aged 65 and over and those with chronic diseases, particularly those with low immune system and chronic lung disease, asthma, COPD, cardiovascular disease, kidney, hypertension and liver disease and employees using medications that disrupt the immune system, employers;
• may grant an administrative pay leave to the employee,
• may terminate the labour contract for just cause due to the force majeure according to the article 25/III of the Turkish Labour Law following the 1-week half-wage payment,
• may wait the force majeure to discontinue without terminating the labour contract and without making any payment to the employee following the 1-week half-wage payment.