To Whom It May Concern,
Coronaviruses are the large family of viruses that may cause diseases on animals or human beings. It is known that this virus may cause respiratory infections and more severe illnesses from influenza (common cold) to Middle East Respiratory Syndrome (MERS) and Severe Acute Respiratory Syndrome (SARS). Name of the controversial disease on our agenda is Coronavirus, (Covid-19) caused by the SARS-CoV-2.
The new Coronavirus (Covid-19) was initially identified on January 13, 2020, as a result of a research on a sample of patients who showed indications of respiratory symptoms (fever, caught, shortness of breath) in late December, in the Wuhan City of Hubei State.
This rapidly spreading virus Covid-19 was discovered in the Republic of Turkey on March 11, 2020 and the number of cases detected as of March 20, 2020 was updated to 359, including 4 losses.
Covid-19 disease, which has effects on commercial, financial and personal life globally, is becoming more and more important in terms of employee and employer relations due to the fact that it causes death and is highly infectious.
In order to inform employers about the legal consequences of an epidemic caused by Covid-19, in this memorandum; Covid-19 disease will be defined as per Turkish legislation, followed by defining the employer’s obligations’ regarding the Covid-19 disease, examination of the reflection of this situation on the termination of an employment contract for the parties and finally, alternative methods for the termination of a contract by the employer will be discussed.
Under Turkish legislation, infectious disease defined under Regulation on Infectious Diseases Surveillance and Control Principles which entered into force on 30.5.2007, as following; “Disease that is transmitted from one person to another by direct contact with an infected person, or transmits indirectly, such as exposure to a vector, animal, object or environment or through fluid exchange contaminated with an infectious substances, resulting from a microorganism or its toxic outputs”.
In the aforementioned Regulation, contagious diseases are defined name by name. Even the Covid-19 is not in the list, MERS Coronavirus (Middle East Respiratory Syndrome) and SARS Coronavirus (Severe Acute Respiratory Syndrome) which are Coronavirus sourced epidemics are defined under the Regulation. Therefore, it is possible to define Coronavirus disease caused by Covid-19 as an infectious disease under the provisions of the mentioned Regulation.
The measures to be taken in the fight against epidemics are regulated between Articles 57-96 of the Public Health Law No. 1593 (the “Law”). As per Article 57 titled “Combatting Illnesses and Epidemics within the Country”, diseases that oblige people to inform are listed. Pursuant to Article 61 of the Law; “Factory, plant, charity, commercial firm and store, hotel, hostel, inn, bat house, prison owner or lessee and manager” are among the people who are obliged to report the diseases listed under Article 57, to the competent authorities. However, in accordance with Article 64 of the Law; obligation to report of such disease is not limited to those listed under Article 57, and if another disease takes the form of an epidemic, reporting obligation of such disease may become mandatory by the Ministry of Health. Therefore, Covid-19 sourced Coronavirus disease may be listed under the must-report diseases by the Ministry of Health, in the near future.
Pursuant to Article 126/1 of the Public Health Law; “Food production, sales and mass consumption places and the owners and managers of the workplaces dealing with cleaning services where in contact with the human body is possible are obliged to provide their employees the hygiene trainings required and make sure employees are receiving such trainings and to hire professionals who received these trainings, and the employees are also obliged to receive these trainings. In the event that they work in person, the owners and managers of the workplaces are also covered by this paragraph of the stated Article.” According to the second paragraph of the same Article; “Those who are documented having an infectious disease and those who have visible open wounds or skin diseases that are discomforting those who directly benefit from the activities and services of the workplace, including the owners and managers who are working in person, until having a health report documenting that their diseases have been healed, shall not work at the workplaces stated in the first paragraph. Employees are obliged to inform the Employer about their diseases.”
Pursuant to Article 127/2 of the Public Health Law; “In the event of an infectious disease or an epidemic occurs in the workplaces defined in Article 126, necessary examinations and analysis expenses for such disease made by relevant institutions are covered by the business owners and managers.” Pursuant to paragraph 3 of the stated Article; “Legal responsibility arising from an infectious disease or an epidemic occurrence in the workplace specified in Article 126 and the compensation or other possible payments claimed by the individuals or institutions suffering from the stated situation through legal means belongs to the owners and managers of a workplace.”
Another legal arrangement on the mentioned subject is the Regulation on Infectious Diseases Surveillance and Control (the “Regulation”). In accordance with Article 10/1 of this Regulation; “Within the scope of the notification system, all public authorities and institutions and natural and legal personalities providing health services within the framework of the procedures and principles determined by the Ministry are responsible for the notification of an infectious disease.” Therefore, similar to the Public Health Law No. 1593, notification obligation is also regulated for employers in case of diagnosis of an epidemic within the scope of the Regulation as well.
Moreover, pursuant to Article 417/2 of the Turkish Law of Obligations No.6098 titled “Prevention of the Employee’s Personality”; “The Employer is obliged to take all measures to ensure occupational health and safety in the workplace and keep the tools and equipment complete; Employees are also obliged to comply with all kinds of precautions regarding occupational health and safety.”
Another responsibility arises at the employer is about the obligation to make a risk assessment within the scope of the Occupational Health and Safety Law. Risk assessment is defined under Law No. 6331 Article 3/ö, and pursuant to this article; “Activities required for identifying hazards which are existing in or may arise from outside the workplace, analyzing and rating the factors causing these hazards to turn into risks and the risks caused by hazards and determining control measures” considered as risk assessment. Employer’s risk assessment or enforcement of that assessment is counted among the general obligations of the employer in accordance with Article 4/c of the Law and the procedures and principles of risk assessment are regulated in the Occupational Health and Safety Risk Assessment Regulation.
Based on Occupational Health and Safety Risk Assessment Regulation, employers have obligations to consider the hygiene conditions related to the working environment and the dangers that may arise from the personal hygiene habits of the employees while making risk assessments and take the necessary measures in order to prevent possible risks. In this context, employers should pay attention to workplace and employee hygiene from the point of virus spread. In the event that the employer acts against the above-mentioned risk assessment process, administrative fines may be imposed, as it acts in violation of its obligations under Articles 4 and 10 of Law No. 6331.
Another responsibility regarding Covid-19 threat in terms of employers arise from the Occupational Health and Safety legislation which is about the workplace physicians. Duties of the workplace physicians are listed in Article 9 of the Regulation on Duties, Powers, Responsibilities and Training of the Workplace Physicians and Other Health Personnel and; “Providing the necessary hygiene trainings, examinations and investigations in addition to the virus spread prevention and immunization studies for the control of infectious diseases” is among these tasks. Therefore, employer must provide the necessary environment for the workplace physician in order to perform the training and examination services listed, due to the risk of Covid-19 disease.
For the workplaces where there is a risk of exposure to biological factors, there is a Regulation on Prevention of Exposure Risks to Biological Factors. Although this Regulation covers the biological exposure because of the work done by the employees, such interpretations may arise as the employees who are likely to be in contact with too many people due to the type of the work to be done are also covered by this Regulation. In this respect, it may be possible for employer to be responsible from the obligations such as health surveillance in terms of reducing the risk of exposure to biological factors specified in this Regulation and providing health surveillance to the employees in terms of the possibility of exposure to the biological factors.
Pursuant to Article 24/I/b of the Labor Law regarding the causes of termination of a contract states that “If the employer or another employee whom the employee constantly near and in direct contact is suffering from an infecting disease or from a disease incompatible with the performance of his duties”. Within the scope of this provision, employees who work closely and directly with another employee with having Covid-19 disease will have a right to rightful termination of their employment contracts and may demand severance pay as well.
One of the issues to be considered in this method of termination is that the employee who is rightfully breaking the contract should be in direct contact with the employee who caught the Covid-19 disease. The termination of an employment contract in accordance with the provisions of Article 24/I/b shall be considered as wrongful termination if employee is rarely in contact or not in contact in any way with the other employee who is carrying the disease.
Even some opinions suggest that this should be considered as a rightful termination and there is a Court of Cassation General Assembly decree dated 13.02.2008 and numbered 2008/133 E., 2008/126 K. in terms of an employee who caught the Hepatitis B virus; recent Case Law of the Court is seeking for a reason arising from the nature of the work in the case of the employee caught the virus by himself/herself.
In the decree of 22nd Civil Chamber of Court of Cassation dated 13.06.2019 and numbered 2016/15042 E. and 2019/12809 K, the Court decided as follows;
“According to Article 24/I/a of the Labor Law No.4857, ‘If the performance of the work stipulated in the contract endangers the employee’s health or life’ Employee may terminate the contract before the end of the period or without waiting until notification period, regardless of whether the contract is for a definite or indefinite period. In the mentioned provision, rightful termination of a contract by the employee is tied to the fact that ‘performance of the work stipulated in the contract endangers the employee’s health or life’. Therefore, in order to rightful termination, endanger must arise from the type of the work and this danger should affect the health or life of the employee”.
In line with the above-mentioned decision, 22nd Civil Chamber of Court of Cassation decree dated 17.04.2019 and numbered 2017/21706 E. and 2019/8959 K, the Court decided as follows;
“Considering factors stipulated in Article 24/I/a of the Law No.4857, characteristics of a workplace, conditions of the work and characteristics of the work performed, as a whole and complaints’ health concerns should be investigated, and the trial Court should evaluate whether the termination of a contract by employee is rightful or not, by providing health report from state or occupational disease hospital, to determine whether the performance of the work stipulated in the contract endangers the employee’s health or life. Due to the lack of investigation, the lower court decision required to be reversed.”
Accordingly, pursuant to both letter of the law and Case Law of the Court of Cassation, employee’s rightful termination of the contract will not be possible in the case of getting infection by himself/herself.
In this context; the force majeure is an unforeseen and unavoidable external event. Technical failures, natural disasters and legal proceedings by the administration which linked with workplace are seen as force majeure events. Accordingly; quarantine of the workplace and/or the inability to enter the workplace will be considered aa force majeure event for the Employee.
In this respect; if it is impossible to work due to an epidemic in a workplace, event of force majeure will be realized in terms of the employee. Moreover, the one should note that except from the fact that the force majeure event has occurred, this event will have to cause the suspension of the work at a workplace, in order to be granted rightful termination. In addition to that, in order to rightful termination based on an event of force majeure, the continuity of this effect is required, for more than a week. Provided that the above specified conditions are met, the employment contract shall be terminated by the employee based on an event of force majeure with the right to demand severance pay. The employer has to pay at least half of the wages of the employee per each day.
Within the scope of the related Article, in case of receiving such request, the Committee shall convene without delay and if the Committee does not exist, the employer shall make a decision immediately and the decision shall be communicated to the employee and employees’ representative in writing. In the event that the Committee or the employer takes a decision that is supportive of the request made by the employee; the employee may abstain from work until necessary measures are put into practice.
The right to abstain from work is not limited to the definite period. In other words, the employee who abstain from work shall practice his/her right until necessary measures are taken. Also, employee cannot avoid from default, unless taking the preventive measures for the risk. In this case, employee’s right to abstain from work will be available until the necessary measures are taken. As such, if such hazard concerns more than one employee, they shall exercise their right to abstain from work collectively, since collective use of a right arise from the law cannot be considered as an illegal strike.
The employer may offer a work that is safe and appropriate for the employee who abstain from work. In this case, accepting this work offered by the employer is a duty of loyalty of employee. Otherwise, the employer may impose disciplinary action to the employee who acts against the duty of loyalty, in accordance with the legislation. In this respect, employer may practice immediate rightful termination according to the Labor Law Article 25/II/e.
Following the request of an employee for the necessary measures to be taken from the employer and in the event of employer has not taken these measures, employees have a right to terminate the employment contract with having the severance pay. Employee may go to “failing to implement the conditions of employment” provision in case of termination, which is stipulated in Article 24/II/f of the Law.
Since Article 13/2 of the Occupational Health and Safety Law clearly states that “the employee shall be entitled to payment during this period of abstention from work and his/her rights arising under the employment contract and other laws shall be reserved”, the rights of the employee arising from the employment contract or the law that constitutes the basis of the employee’s contractual relationship, shall continue to be processed. For the stated reason, wages or salaries and their supplements shall be paid to the employee, including the payment of SSI premiums. The only difference of this event from the regular employment relationship is that the employee is not working. All other debts of the parties will be in force.
According to Article 76 of the Public Health Law, people who caught epidemics such as Covid-19 shall be banned from working; “Those who are carrying the infectious disease which is certain shall be banned from working for a short period and until the recovery with the decision of the related authority”.
This prohibition will be removed with the recovery of the disease. Since it is a legal obligation for those infected has to be kept under quarantine until the recovery, the employment relationship will be suspended during the prohibition of the work. Therefore, while the employment contract is on suspension, the employee shall not be working; and employer will not be under the obligation to pay the wages.
The fact that this situation gives the employer the right to termination only employee exceeds the notice period for six weeks, as stated in Article 25/I/b-2 of the Labor Law. Accordingly, termination of employment contract of an employee who are banned from working due to Covid-19 will only be possible if this period exceeds the employee notice period, and otherwise, employer’s right to termination will not arise.
It is crucial to note that in this case the employee will be entitled to severance pay, however, the prohibition period (suspension period of the employment contract) will not be included to the employment duration which will be considered as a base for the compensation.
“(…) The employment contract of the employee was terminated in accordance with paragraph 2 of paragraph 25 / I- (b) of the Law numbered 4857 when the period of notice that the defendant employer's report was exceeded by six weeks. According to the information and documents in the file, it is seen that employee was reported due to the traffic accident between the dates 11.08.2016 - 21.09.2016, 22.09.2016 - 19.10.2016, 20.10.2016 - 23.11.2016, 24.11.2016 - 28.12.2016, 29.12.2016 - 26.01.2017, 27.01.2017 - 22.02.2017, 23.02.2017 - 30.03.2017. According to this; it is understood that the duration of the claimant's (employee) uninterrupted reporting exceeded the priority of the notice by six weeks and the employment contract was terminated by using the right of termination without notice arising from the employer. The claimant’s employment contract was terminated by the defendant for the right reason (…)”
In accordance with Article 25/I/b-2 of the Labor Law, severance pay shall be made to the employee, if he deserves at rightful termination. However, in the calculation of severance pay, health reports that exceed 6 weeks of notice will not be taken into consideration. Because, in the decision of the 9th Civil Chamber of Court of Cassation, dated 19.02.2009, numbered 2007/33997 E. and 2009/3032 K., the Court of Cassation made the following assessment;
“The minimum period of one year sought in terms of employee severance right ends immediately when the termination is notified during termination.
As a rule, when the notice of termination reaches the addressee, it results. In terms of notified terminations, the notice is included in the priority period. It would be appropriate to evaluate the rest reports of the worker while he was working at the workplace during the seniority period. It is the determined Court of Cassation practice that the duration of the rest report exceeding 6 weeks of notice at a time while the worker is working cannot be taken into account in the calculation of severance pay. The suspension period of the employee's employment contract should not be counted from the term of employment.”
Finally, if the employer does not terminate the employment contract during this treatment of employee with health report, the suspension period continues and when the worker returns to the workplace, the suspension situation will be removed. With the disappearance of the suspension situation; the obligation to fulfill the performance of work for the employee and to pay wages for the employer will again be in force.
In accordance with Article 2 of the State of Emergency Law No. 2935, it is possible to enforce emergency management procedures due to hazardous epidemics. Within the scope of Article 5 and 9 of the mentioned Law, the state may have the authority to introduce measures and make interventions for the businesses and commercial transactions. One of these measures regulated is “prohibiting settlement in certain parts of the region, limiting access to and exit from certain settlements, evacuating certain settlements or transferring them to other places”.
However, it should be noted that the declaration of state of emergency based on epidemic diseases is not considered as a force majeure solely that will either eliminate or suspend the obligations of the parties in legal contractual relations. In this respect; the Covid-19 epidemic needs to be described as a force majeure in order to be base for a legal claim which it must have effects on both business life and commercial transactions. In addition, it should be remembered whether the reason revealed in the failure to fulfill the obligations carries the factors of force majeure on the basis of each concrete case.
In the cases such as the prohibition of leaving a certain area due to the epidemic disease mentioned above which is regulated in Article 9 of the State of Emergency Law, if the employee fails to perform his work and if this situation exceeds one week, then the employer may terminate the employment contract with paying the severance pay for the rightful termination in accordance with the Article 25/III of the Labor Law.
Likewise, in the following decision dated 18.09.2019, numbered 2016/9116 E. and 2019/16141 K., the 9th Civil Chamber of the Court of Cassation accepted the quarantine implementation as the event of force majeure due to the epidemic disease;
“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, the closure of the workplace is not a force majeure (9th Civil Chamber of the Court of Cassation, dated 25.4.2008 2007/16205 E, 2008/10253 K.). However, situations such as transportation cut due to the natural events such as flood, snow, earthquake, and quarantine application due to epidemic disease are considered as event of force majeure.”
In accordance with Article 25 of the Labor Law, for the right of rightful termination of the employer, force majeure that causes the employee not to continue his job, must continue for at least a week. Namely, in the event of a force majeure preventing employee from the work, the employment contract is suspended for the duration of the force majeure. In accordance with Article 40 of the Labor Law, the employer has to pay half a wage every day to the employee within the mentioned one-week waiting period. However, if the force majeure causes the employee to fail to work for more than a week, the employer has a right to rightful termination of the employment contract. In this case, severance pay will be paid to the worker if he deserved. At the end of a week that the employer must wait for the occurrence of rightful termination, the employer may wait for the force majeure to be removed by not using the right of termination, based on his/her decision. However, during this period, the employee does not have to pay any wages. During this period, the suspension shall continue, but as long as the force majeure continues, the employer's right to immediate termination will remain available. However, if the event of force majeure comes to an end, the employee must continue to work and the employer must let him/her to work.
Finally, it should be emphasized that, in accordance with the Article 25/III of the Labor Law, the force majeur is considered to be realized before the employee, not the employer and/or the workplace, as opposed to Article 24/III of the Labor Law.
In case of Covid-19 disease is accepted as a force majeure in terms of wage payment, employers will be having the right to delay workers' wages under Article 34 of the Labor Law. In this case, the employees do not have the right to abstain from working.
In this respect, the event of force majeure is; a non-voluntary, outsider, unpredictable phenomenon that saves the debtor from faulty violation to the contract and causes delay in payment. When the decisions of the Court of Cassation and the definitions made in the doctrine are taken into consideration, it will be seen that the force majeure has three elements as externality, inevitability and unpredictability. Court of Cassation has defined the force majeure in one of the cases as; "In order to talk about the event of force majeure to be the case, it must be unpredictable, any attribution causing this situation must not be imposed on the debtor and it must have an unbeatable and irrevocable quality and make the performance of the debt impossible."
In order for an event to be accepted as a force majeure in payment of wages, it must first have occurred outside of the employer's operations and business namely it is required to have an externality feature. In other words, there should be no connection between the occurred event and the business. Since disasters such as floods, earthquakes, fire, landslides outside the workplace are not related to the business, they are considered as force majeure. Situations such as warfare, mobilization, general strike, which occur outside of business and meet the conditions of inevitability and unpredictability may also be accepted as force majeure. In this context, the epidemic due to Covid-19 disease may be evaluated as a force majeure. It should be noted that the existence of force majeure will not be sufficient alone in terms of delaying the wages and this force majeure will also be sought to prevent the payment of the employees' wages.
Finally, if the employer is unable to pay employees' wages due to the existance of force majeure and employees abstain from working because of this reason, the employer has opportunity to terminate the contract based upon Article 25/II/h of the Labor Law. Then, despite of the existence of force majeure, the employees' abstaining from work due to the unpaid wages will constitute a faulty violation to the contract.
In accordance with the paragraph 1 of Article 22 of the Labor Law, the proposal made by the employer should be made in writing. The acceptance of this proposal, which made by the employer shall be realized either explicitly and implicitly by the employees. Namely; if the employer informs the employee who are proposed to leave for unpaid leave in a written form in accordance with the Article 22/II of the Labor Law and the employee accepts this proposal in writing within six working days, the employment contract will be suspended. If the employee does not accept this proposal in a written format, this change in working conditions will not bind him. On the other hand, the employee who fulfills the employer's propose for unpaid leave without any objection is deemed to have consented to this. When there is a hesitation about whether the employee has consented to the unpaid leave, burden of proof will belong to the employer. In addition, the application of unpaid leave must be reasonable and for a temporary period in nature.
If the employees are forced to use unpaid leave unilaterally without their consent, this situation shall be considered malicious, invalid or unfair termination depending on whether the employees concerned are subject to the employment security provisions. If the employer imposes the change to the employee without terminating the employment contract, it can be evaluated as the employer's default as well as it is evaluated as the termination of employment contract by the employer according to the characteristics of the concrete event in accordance with Court of Cassation.
If the employer has a valid reason for demanding employees to take for an unpaid leave, the employer may choose to terminate the employment contract by explaining it in writing and complying with the notice period. In this case, the employee covered by the employment security provisions can file a lawsuit for invalid termination. This second way, which the employer does not give up on the proposal for substantial changes in working conditions, is described as change termination.
Similarly, if the employer imposes the change on the employee without terminating the employment contract; employee shall immediately terminate the employment contract with a right to demand severance pay based on Article 24/II/f of the Labour Law, titled “if the working conditions are not applied”.
Having employees use the collective annual leave regulated in Article 10 of the Regulation on Annual Paid Leave is a convenient means that can be applied to adapt to the temporary decline in business. In accordance with the related article; "The employer or the employer representative can practice annual leave collectively covering all or part of the employees between the beginning of April and the end of October."
Consequently, it may be possible for the employer to force the employees to use annual paid leave, by applying collective leave practice covering all or part of the employees between the beginning of April and the end of October.
In this aspect, due to the Covid-19-induced epidemic, which is the force majeure, it may be possible for the employers to shutdown of work and to practice compensatory work later on. In this context; compensatory works cannot be considered as overtime working or working with overtime as well as it cannot be more than three hours a day and cannot be made on holidays on condition that not exceeding the maximum working time per day.
In this context; there will be no need to process a substantial change procedure and the approval of the employees in terms of this change will not be sought after the letter to be notified to the employees under Article 22 of the Labor Law No. 4857.
It would be appropriate to state that the practice of Home Office will be implemented and how the working conditions will be under the new working order in the notification letter, which will be notified by declaring by hanging at the workplace or delivering by hand or sending to employee’s e-mail and etc.
It should be paid attention at this point that the employer does not make any changes in the employee's personal rights and working conditions and continues to pay during the Home Office if the employee is paid for food. Otherwise, the substantial change procedure will have to be processed and obtaining the approval of employees will be required within 6 working days. It should be noted that if the employees are paid for the road; the employer will not be liable for the payment of road toll during the Home Office.
In outpatient treatments, a rest shall be given to the insured for outpatient treatments up to 14 days at a time (valid until the end of June 2020) with a single physician report. If the control examination is specified in the report after the rest, the rest can be extended provided that the total period does not exceed twenty days.
As per Article 3 of the Regulation on the Short Work and Short Work Allowance ("Regulation"), “short-time working was defined as “for not exceeding three months with the reasons listed in the Appendix 2 of the Law No. 4447; the reduction of the working time applied in the workplace by at least one third of the workplace or in a part of the workplace temporarily or for a total or partial cessation of the activity for at least four weeks without seeking continuity condition”. It is a legal arrangement that shall be applied in case of a halt in the workplace due to the Covid-19 epidemic because in Article 3/h of Regulation, compelling reasons was defined as “The periodic situations caused by the external effects that are not caused by the employer's own referral and administration, cannot be predicted and cannot be eliminated, resulted in temporarily decreasing the working time or wholly or partially halting the activity or earthquake, fire, flood, landslide, epidemic disease”.
In this case, the employers who are inability for carrying on activities at workplace due to epidemic regarding the Covid-19 disease can request for passing the short-time working practice by means of written notice to Turkish Employment Agency and its units established in provinces and districts, and the labor union that is a party to the contract (if there is a signed collective agreement).
The employer's short-time working application request is primarily evaluated by the Institution in terms of cause and form. Convenience of the application is determined by the labor inspectors of the Ministry of Family, Labor and Social Services. In the workplace, which has received short-time working approval with the Ministry's determination of convenience, if the employees refuse to accept this situation, their refusal does not comply with the objective rules of good faith. The only exception is that the employee has not yet been entitled to a short-time working allowance. If the premiums to be paid to the unemployment insurance are not sufficient, it is possible to immediately terminate the employment contract for the rightful reason by not accepting the short-time working decision.
If an employer’s request in relation to short-time working is found appropriate upon the evaluation of this demand, the party to be paid the short-time working allowance will be the employee, not the employer. Daily short-time working allowance will be 60% of daily average gross earnings, which is calculated by taking into account the earnings based on the last twelve months premium of the insured employee and the amount of short-time working allowance calculated in this way will not exceed 150% of the gross amount of the monthly minimum wage.
In addition, it should be noted that in case of short-time working at the workplace due to compelling reason, the payments are made will start after the one-week period stipulated in Article 24/III and 40 of Labor Law and will not exceed the duration of the compelling reason and, in any case, three months.
In addition, the short-time working period shall be taken into account when calculating annual leave and severance pay.
Due to the Covid-19 outbreak, employers in all countries take additional protective measures to protect both public and worker health. Within this framework, employers who act as a data controller collect and process personal data as a cautionary measure due to the Covid-19 outbreak in addition to the existing personal data processing within the scope of occupational health and safety. As in the current situation, most employers request information about journeys abroad in the last 14 days, emergency contacts, health related and additional information from those who visit the company buildings and employees.
Regarding the said data processing, Law No. 6698 on Personal Data Protection (“KVKK”) and related secondary legislation, decisions of the Personal Data Protection Board, guidelines published by the Personal Data Protection Authority as well as other related legislation have to be considered and any breach of these legislations have to be avoided.
In this context, employers will only be able to collect and process personal data other than special categories of personal data (e.g. health information) in accordance with the basic principles enumerated in KVKK and in the presence of at least one of the data processing conditions set forth in Article 5 of KVKK. At this point, the purpose of personal data processing by the employer must be clearly determined. In order to get the purpose, it is necessary to evaluate the obligation of personal data processing and that only limited and measured personal data are processed for purpose. For instance, it will not be compatible with the principle of limitation and proportionality to collect data unrelated to combating the Covid-19 outbreak or measuring the fever of each visitor regarding personal travels of employees and visitors.
On the other hand, keeping in mind the employer’s obligation to protect the health and security of her/his employees', processing of said data will be considered in the frame of 2nd paragraph in Article 5 of KVKK which regulates the "data controller's legal obligation" provided that it is in line with basic principles. Similarly, it can be said that processing of said personal data can be considered within the scope of 2nd paragraph of Article 5 of KVKK which regulates "obligatory processing for the legitimate interest of the data controller" provided that it is compatible with the basic principles and not in breach of fundamental rights and freedoms.
However, if health data is also required to be collected by employer to prevent the spread of the Covid-19 outbreak, a different assessment will be required. In accordance with the 1st paragraph of Article 6 of KVKK titled “Conditions for Processing of Special Categories of Personal Data”, health data is listed as a limited number of sensitive personal data which are listed in KVKK and protected by more stringent conditions. Similarly, it can be said that processing of said personal data can be considered within the scope of second paragraph of Article 5 of KVKK which regulates "obligatory processing for the legitimate interest of the data controller" provided that it is compatible with the basic principles and not in breach of fundamental rights and freedoms. 2nd paragraph of the same article explicitly regulates that sensitive personal data like health-related data, can only be processed for the purposes of public health, preventive medicine, medical diagnosis, conducting treatment and nursing services, planning health services and its financing and managing by people or authorized bodies without explicit consent.
In this context, the collection and storage of health data of employees and visitors only by workplace physicians under the obligation to keep secrets, for the purpose of protecting public health, can be evaluated within the scope of the legal requirement described in 3rd paragraph of Article 6 of KVKK and will be able to perform without their consent. On the other hand, if the health data is collected and / or transferred to other third parties by the company employees and / or service providers who are not under the obligation to keep secrets other than the workplace doctor, it is considered that the data processing activity cannot be carried out without the explicit consent of the related person. In addition, in order to process sensitive data, it is necessary to take adequate measures determined by the Personal Data Protection Board.
It should be noted that, in accordance with the provisions of the Communique On Principles and Procedures To Be Followed In Fulfillment Of The Obligation To Inform, the obligation to be informed must be fulfilled by the data controller in all cases where personal data is processed depending on the explicit consent of the related person or other processing in KVKK. If the personal data processing activity is carried out based on the explicit consent requirement, it is clearly stated that the obligation to be informed and obtaining explicit consent must be performed separately. In this context, the relevant person should be informed at the latest when the data is collected and, if necessary, their explicit consent to the processing of health data from the related person should be obtained.
At this point it has to be kept in mind that, collected data have to be processed in accordance with one of the basic principles set out in KVKK which states that "data have to be stored for a period set forth in related legislation or long enough for the processing purpose" and the provisions of the Deletion, Destruction or Anonymization of the Personal Data. Accordingly, in order to prevent the spread of the Covid-19 outbreak, personal data collected should be deleted, destroyed or anonymized by the data controller, either ex officio or at the request of the related person.
Lastly, it should be noted that there is no clear regulatory provision regarding the protection of personal data on the subject or any decision or public announcement of the Personal Data Protection Board. Similarly, in terms of European Union data protection authorities, the subject has been handled from different perspectives and no consensus has yet been reached. For instance, the Irish Data Protection Authority does not prohibit the collection of personal data using a survey form if there is a very strong legitimate basis based on the principle of being necessary and measured for the purpose and risk assessment. On the other hand, the French Data Protection Authority has the opinion that it is not appropriate to collect personal data with generalized questionnaire forms, however; it claims that the measurement of the fires of the employees and the collection of personal data with narrow comprehensive questionnaires will be appropriate only in the presence of the employees’ consent. Thus, this opinion may change depending on the development of the Covid-19 outbreak and legislations and/or related authority decisions taken according to this.
6.1. In case of the coronavirus disease resulting from Covid-19 becomes an epidemic;
6.2. Due to danger of Covid-19;
6.3. In case of epidemic, from the point of employees;
6.4. In terms of termination, from the point of employer;
6.5. As an alternative to termination, for employers;
6.6. In terms of the protection of the protection of personal data within the scope of Covid-19;
 For more detailed information, you can find the Personal Data Protection Board’s decision dated 25/03/2019 and numbered 2019/78, which determines the basic frameworks in terms of applying the legitimate interest legal requirement.
 You can find the Personal Data Protection Board’s decision dated 31/01/2018 and numbered 2018/10 regarding the adequate measures to be taken by the data controller for the processing of special categories of personal data here.