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In view of the enormous impact of the coronavirus on the economy and companies worldwide, we would like to give you a brief overview of the legal consequences of this pandemic in Turkey from the perspective of Turkish labor law. Below is the questionnaire created to guide the employers doing business in Turkey towards their workers.
1. Which workplaces have to be temporarily closed?
According to the circular published by the Turkish Ministry of the Interior on March 16, 2020, all theaters, cinemas, show centers, concert halls, engagement / wedding halls, restaurants / cafes with music or live performances, clubs, pubs, taverns, coffee houses, cafeterias, country gardens, shisha Cafes, internet cafes, game rooms, clubhouses, amusement parks, swimming pools, SPAs and fitness studios must be temporarily closed.
Workplaces that do not fall within the scope of the circular will continue to be operated as usual. Please note in this context that according to the general principles of the Turkish Labor Code (“Labor Code“) and the Turkish Code of Obligations, employers are obliged to carry out health surveillance in the workplace and to protect the personal rights of employees. Therefore, some of the employers take certain measures in practice, although they are not prescribed by the above-mentioned circular measures to prevent the spread of the coronavirus in the workplace, that is, closing, restructuring or downsizing their businesses.
2. What are the options for the jobs that are closed voluntarily or as part of the circular?
Firstly, it should be noted that, under Article 417 of the Turkish Code of Obligations, employers are obliged to protect their employees and take all necessary precautions to ensure health and safety at work. Therefore, employers who wish to open their businesses (which are not covered by the circular) must diligently call their employees to work to prevent the virus from spreading. In this regard, if such employers decide to temporarily close their jobs during the pandemic, usually, They will continue to be required to pay their employees a salaryas they are not covered by the circular (with the exception of cases specific to the job or the worker concerned).
Regardless of whether the workplace closes compulsorily as per the circular or voluntarily closes as explained above, employers may consider implementing the following options (not necessarily in the following order):
- Employees who work from home (with full or partial salary) if possible – In such a case, employees can work from home for full or partial salary. Please note that the option of partial wage payment requires prior written approval from the employee.
- Employees taking annual leave together – In cases where employees are unable to work from home or employers do not prefer to pay the salary while the workplace is temporarily closed, employers may opt out of the Workers require that they share their annual vacation with paid vacation rights. Accordingly, the annual leave forms should be completed by employees before the annual paid leave entitlement is exercised.
- Employees Taking Unpaid Leave Together – In cases where none of the above measures can be applied, employees may need to take unpaid leave, which is detailed below.
- Other Actions and Termination – We will look into other available options such as balancing work and the mutual termination rights listed below.
It is important to note that Article 40 of the Labor Code prescribes that in cases of force majeure, employers must pay half of the employee’s salary for a period of 1 week, even though the employee does not work for it. Therefore, the above-mentioned Article 40 must always be applied by employers (only for one week).
Even employers are implementing the options outlined in this article to dismiss employees. Therefore, employers are required to pay half of employee salaries and social security premiums for one week as explained above.
After the one-week period has expired, employment contracts of employees working in the jobs covered by the circular will be suspended and employers will not have to pay a salary. However, whenever possible, we encourage these employers to implement the above measures before proceeding with a dismissal.
As mentioned above, the requirements to come to work in relation to the employee and to pay a salary in relation to the employer continue to apply to the jobs not covered by the circular (unless there is a specific quarantine case ). Therefore, it is crucial for such employers to consider the options discussed in this article.
3. How is the unpaid leave procedure implemented in Turkey?
Please note that employers can always require their employees to take unpaid leave for a certain period of time.
by prior written consent. In this regard, employers who require their employees to take unpaid leave must inform them in advance in writing and clearly state the reason for the unpaid leave as a coronavirus pandemic. The letter of consent must set a reasonably limited time limit and indicate how long the unpaid leave procedure will be in effect, and this must also be stated on the consent forms. It is not recommended to just write “while the epidemic continues”.
The employment contract of an employee who accepts the use of the unpaid leave in writing within 6 working days is suspended accordingly. During the suspension, such employment contracts remain in effect, but employees are no longer required to perform their work and employers are no longer required to pay wages. In addition, employers are not required to pay employee social security premiums during the unpaid vacation period.
If the employee does not accept the requirement of unpaid leave within 6 working days, the employer can terminate the employment contract by stating in writing that this requirement is based on a valid reason (taking into account whether the other options exist or not) will). You’re welcome
Please note that in the event of such termination, the severance pay must be paid to the employee whose employment contract is terminated if he has the entitlement under Article 14 of the former Turkish Labor Code. We would like to emphasize that the pandemic can also be a reason for the immediate termination, as explained below.
Please note that the parties can change the working conditions of the employee (such as the salary or the change of duties as part of the restructuring) at any time by mutual agreement.
4. If the employer is unable to take any of the above measures (paid vacation, unpaid vacation, working from home), is there an option other than termination of the employment contract?
In any case where employers voluntarily or forcibly close their jobs during the pandemic and none of the above measures (paid vacation, unpaid vacation, home office) can or will be taken, other measures such as compensatory work or short-term work can be applied if the employee is not to be terminated.
5. How is the compensation work carried out by the employers?
In those cases in which the employees’ working hours are significantly lower than the regular working hours; If the operation is completely shut down due to force majeure or the employee is granted unpaid leave at his request, the employer may require the employee to do compensatory work within two months (an extension to four months is expected from the Turkish government) to make up for the lack of time. Such compensatory work does not count as overtime and the employee is therefore not entitled to overtime payment. Please note that employers must inform employees in advance of the details of the compensatory work. The daily working time of an employee can be a maximum of 11 hours and the compensatory work must not exceed 3 hours per day.
6. What is short-term work and short-term work?
If the working time at a workplace is reduced by at least 1/3 or the operation is wholly or partially suspended for at least 4 weeks (it does not have to be consecutive), the employer can decide to work short-time at the workplace for compelling reasons such as general economic, sectoral or regional crises and epidemic diseases by applying to the Turkish employment agency.
Please note that the duration of the short-term employment may not exceed 3 months (it can be extended to 6 months by the President). During this period, workers who are entitled to unemployment benefit from the Turkish government by completing the “Social Security Premium Day” are also entitled to short-term labor compensation from the Turkish government.
7. Can the employment contracts be terminated due to the coronavirus pandemic?
Please note that all employers must consider termination of employment contracts as a last resort by also taking into account the proportionality and equal treatment policies of Turkish labor law.
According to Article 24 of the Labor Code, the employee can immediately terminate the employment contract for good cause because “force majeure occurs which interrupts the operation of the workplace for more than a week”. On the other hand, according to Article 25 of the Labor Code, employers can also terminate the employment contract immediately “in the event of force majeure that prevents the employee from working at the workplace for more than a week”.
Regardless of whether the notice is given by the employer or the employee; in the case of such an immediate termination as mentioned above for an important reason, The employee is entitled to a severance payment if he has worked for the employer for at least 1 year (except in cases that are specific to the employee). However, neither of the parties is usually entitled to cancel the payment.
Please note, however, that each case should be specifically examined before any action is taken to terminate the contract, especially with regard to the workplaces that are not subject to mandatory shutdown but are closed voluntarily.
The content of this article is intended to provide general guidance on the subject. A professional should be obtained about your particular circumstances.
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