Coronavirus and Employment Law Series – 1: An Assessment in Terms of Occupational Health and Safety and Work Accidents

The coronavirus disease (Covid-⁠19) was declared a “pandemic” by the World Health Organization (WHO) on March 11, 2020; spreading rapidly in Türkiye and around the world, the disease has significantly affected both economic and daily life. The WHO announced that, as of March 13, 2020, the epicenter of this disease, which spread to the world from the city of Wuhan in the People’s Republic of China, was Europe. As is known, almost 50% of Türkiye’s exports go to European Union countries. In addition to production being affected by the measures taken and by “voluntary quarantine” practices, the markets into which production is channeled have also been put in a difficult position. It is clear that all these processes will also have certain legal consequences for businesses.

In this article, the legal issues that may arise for employees and employers due to the “outbreak” will be assessed in a question-and-answer format, also taking into account ongoing contracts. Below, we present for your benefit the first part of the article series, on “Occupational Health and Safety and Work Accidents”.

1. What is an occupational accident, and when can it occur?

An occupational accident is an event that occurs at the workplace or by reason of the conduct of work and that causes death or renders bodily integrity mentally or physically disabled. Under Art. 3/I-g of the Occupational Health and Safety Law No. 6331 (İSGK), for an event to be regarded as an occupational accident, the accident must occur at the workplace or by reason of the conduct of work and must cause the employee’s death, the impairment of his or her bodily integrity, or his or her becoming mentally or physically disabled. In addition, under Art. 13 of the Social Insurance and General Health Insurance Law No. 5510, the definition of an occupational accident is kept broad, and it is further stated that the employee may be exposed to an event that may be regarded as an occupational accident while at the workplace, while elsewhere outside the workplace on duty, or while traveling to and from the place where the work is performed in a vehicle provided by the employer.

It should not be forgotten here that the employer is obliged, also in respect of an employee to whom it assigns work under a remote working relationship, and taking into account the nature of the work performed, to inform the employee about occupational health and safety measures, to provide the necessary training, to ensure health surveillance and to take the necessary occupational safety measures regarding the equipment it provides to the employee.

2. Is the employee’s health the employer’s responsibility?

In addition to his or her own individual health, the employer must also take care of the health of the employees working for him or her. Article 4 of the Occupational Health and Safety Law imposes on the employer an obligation to take a number of measures, such as adapting health and safety measures to changing conditions and improving the existing situation, providing training and information on occupational health and safety, and supplying the necessary tools and equipment. This obligation of the employer is intended to protect not only the employee’s physical integrity but also his or her mental integrity. This matter is also regulated in Article 417 of the Turkish Code of Obligations No. 6098.

The laws have not been content with imposing obligations only on the employer; Article 417 of the Turkish Code of Obligations also states that employees will comply with these obligations, providing that “employees are also obliged to comply with all measures taken regarding occupational health and safety”.

3. Are there legal and criminal sanctions for the employer and the employee acting in breach of their obligations under the Occupational Health and Safety Law and the Social Insurance and General Health Insurance Law, and can the sanctions be mitigated or eliminated in the employer’s favor?

Because of an occupational accident, the employer not only has an obligation to pay compensation to the employee, his or her relatives and the Social Security Institution (SGK) but may also face criminal sanctions. However, the employer’s legal and criminal liability in occupational accidents will decrease, and in certain cases may even be eliminated, depending on circumstances such as all the measures that should be taken having been taken, information having been provided in accordance with the proper procedure, and the causal link having been broken (force majeure and gross fault of the injured party or of a third party). The employer’s full compliance with its obligations under the Occupational Health and Safety Law and the Social Insurance and General Health Insurance Law is important in determining liability.

“In actions brought to recover damage arising from a breach of occupational health and safety measures, the employer’s fault is of great importance in arriving at the amount of the damage. For this reason, it is useful to set out the parties’ degrees of fault in the occurrence of the accident according to the various possibilities and to determine how fault affects the compensation.” (Court of Cassation, 21st Civil Chamber, Docket No. 2019/5246, Decision No. 2020/975, 20.2.2020)

“By defining certain acts committed negligently as offenses and attaching criminal sanctions to them, the aim is to ensure that people behave more carefully within an increasingly dense and complex social life. Criminal liability for negligent offenses has been adopted for a person who breaches the duty of attention and care imposed on him or her by society as a result of the law and of common life experience and who, through this conduct, causes a foreseeable harmful result; however, for negligence to be at issue, it is also required that there be a causal link between the perpetrator’s conduct and the resulting outcome and that the outcome, although foreseeable, was not foreseen.” (Assembly of Criminal Chambers of the Court of Cassation, Docket No. 2014/12-103, Decision No. 2014/552, 9.12.2014)

4. Can the coronavirus (COVID-⁠19) outbreak be regarded as an “occupational accident”?

First of all, as stated above, for it to be said that an employee affected by the outbreak has suffered an occupational accident, the accident must have occurred at the workplace or by reason of the conduct of work. In its decision dated April 15, 2019, the 21st Civil Chamber of the Court of Cassation regarded as an occupational accident the case of a truck driver returning from a trip to Ukraine who contracted the H1N1 (swine flu) virus during the trip and died as a result. The judgment in question states: “It is clear that his subsequent death, linked to the H1N1 virus which, as understood from the content of the above-mentioned report, he contracted during the trip to Ukraine, must be accepted as an occupational accident.” (Court of Cassation, 21st Civil Chamber, Docket No. 2018/5018, Decision No. 2019/2931, 15.04.2019). In light of this decision of the Court of Cassation, in the event of a dispute, the courts may also rule that employees who fall ill or die because of the coronavirus outbreak have suffered an occupational accident. As stated above, in circumstances such as all the measures that should be taken having been taken, information having been provided in accordance with the proper procedure, and the causal link having been broken (force majeure and gross fault of the injured party or of a third party), the employer’s fault will decrease, and in certain cases may even be eliminated.

In all these cases, regardless of whether the employer is at fault, if the employee contracts the coronavirus disease at the workplace or in the course of carrying out work and, as a result, dies or his or her bodily integrity becomes mentally or physically disabled, the existence of an “occupational accident” will have to be accepted.

5. Assuming that the coronavirus is a phenomenon the employer cannot avoid despite taking every kind of measure, will the employer’s liability nevertheless continue?

There may be situations in which, despite having taken every kind of measure to prevent the coronavirus, the employer cannot prevent the disease from being transmitted to employees. In this case, however, the question will arise whether the employer can also be held liable in occupational accidents in which the employer is not at fault. In this case, the matter will need to be assessed in the context of force majeure and unforeseen events. We are of the opinion that the coronavirus should be regarded as an “unforeseen event”.

“As can be seen, although the concepts of force majeure and unforeseen event are similar in that they are independent of fault, arise as a result of unpreventable events and affect the employer’s liability, they are different concepts. First of all, while force majeure causes the breach of the obligation as a result of more powerful events such as lightning, hurricanes, war, etc., in the case of an unforeseen event, events of such strength and intensity are not at issue. On the other hand, while force majeure entirely eliminates the debtor’s liability because the causal link is broken, an unforeseen event does not always entirely eliminate the debtor’s liability and in some cases partially relieves the debtor of liability.” (Assembly of Civil Chambers of the Court of Cassation, Docket No. 2015/10-2682, Decision No. 2019/986, 1.10.2019)

In its relevant decisions, the Court of Cassation has dwelt on the concept of “unavoidability” and has held that a situation of unavoidability does not eliminate the fact of an occupational accident and that the employer’s liability continues. In this case, however, on grounds of equity, the employer will not be liable for the entire damage.

“Unavoidability is characterized as an unforeseen event. Another name for unavoidability is adverse chance. Unavoidability refers to events that are foreseeable but cannot be prevented. Sometimes an occupational accident or occupational disease may occur even where every kind of precaution has been taken. In a case of unavoidability, it would not be equitable for the employee to bear the entire damage. In the practice of the Court of Cassation, in cases of unavoidability, liability is as a rule apportioned 60% to the employer and 40% to the fault of the injured worker.(...) it is clear that, in the incident that resulted in the death of the plaintiffs’ decedent, the element of “unavoidability” was 100% effective.” (Court of Cassation, 21st Civil Chamber, Docket No. 2019/4094, Decision No. 2019/7643, 10.12.2019)

6. Can a causal link (cause-and-effect relationship) be established in coronavirus-related occupational accidents, and how is the causal link established?

Once it has been stated that the coronavirus may be regarded as an occupational accident, the question will arise whether the employee’s coronavirus disease stems from the workplace or from reasons related to the conduct of work and, in this context, whether or not it can be regarded as an occupational accident. In occupational accidents, the elimination of the causal link may eliminate the employer’s liability. Looking at occupational accidents in the context of the coronavirus, since the consequences of the disease will appear later, it is important to establish an adequate causal link. For example, if the employee contracted the disease in the course of carrying out work but the harmful consequences of the disease appeared only later (for example, while the employee was on annual leave), it will have to be accepted that the disease is an occupational accident.

"Since the law defines an occupational accident as an event that renders the insured person physically or mentally disabled immediately or subsequently, it is possible for the effects of the event to continue for some time and increase over time, and for the result to occur later as a consequence. In other words, just as an occupational accident may occur in the form of a sudden event and the resulting damage may arise immediately, its effects may also appear later, as in the case of gas poisoning. Provided that there is an adequate causal link between the damage that arises later and the event, the event must be accepted as an occupational accident.” (Court of Cassation, 21st Civil Chamber, Docket No. 2018/5018, Decision No. 2019/2931, 15.4.2019)

7. What measures can be taken at the workplace?

Considered in the context of the coronavirus outbreak, the employer will generally be able to take the measures listed below. It should not be forgotten, however, that it would be right to assess these measures individually, within the framework of the nature and conditions of each job.

- The necessary tools and equipment should be provided: masks, gloves, alcohol-based disinfectants and the instruments needed to measure body temperature should be kept at the workplace,

- Information should be provided and supervision carried out: the ways of protecting oneself against this disease should be explained, measures should be implemented, the use of equipment should be made mandatory, care should be taken to maintain social distancing during work and breaks, and attention should be paid to personal hygiene,

- The workplace should be adapted to the changing conditions: the distance between employees in the working environment should be arranged, the working environment should be disinfected, only a limited number of customers should be allowed into the workplace, working hours should be rearranged, remote working should be introduced where possible, and overtime should be discontinued,

- Individuals’ fitness for the work should be monitored: those with chronic illnesses should be identified and should not be allowed to work, and a suitable working environment should be provided for employees whose situation is sensitive, such as motherhood,

- Places where there is danger should not be entered: employees should not be sent to places under quarantine or to places where the likelihood of catching the disease is high,

While all these measures are being taken, it would be appropriate to obtain the employee’s written approval of all the changes made and measures taken, such as the employee having been given the necessary equipment and the working environment having been adapted to the changing conditions, and to document this and place it in the employee’s file. The employer should not hesitate to implement other measures as well if it deems them necessary. Under Article 4 of the İSGK, the employer may not claim any costs from its employees on account of the occupational health and safety measures taken.

As stated above, there is no limit on the measures the employer must take for the employees working for it. In this respect, in addition to taking measures at the workplace, the employer may also try other ways of protecting the employee. Working from home, having employees use their annual leave, compensatory work, granting unpaid leave and short-time working can be cited as examples of measures to be implemented within the scope of occupational health and safety.

8. Can the employee work remotely without coming to the workplace?

Thanks to the development of information technology, working from home or from another place outside the workplace may be possible for certain professions and sectors. Because of the current outbreak, employers may, by providing the necessary equipment, enable the employee to work from home and thus to stay away from a crowded working environment. The employer’s obligations relating to health and safety continue during remote working as well. Under Art. 14 of Labor Law No. 4857, “The employer is obliged, taking into account the nature of the work performed by the employee to whom it assigns work under a remote working relationship, to inform the employee about occupational health and safety measures, to provide the necessary training, to ensure health surveillance and to take the necessary occupational safety measures regarding the equipment it provides.” The employer cannot avoid taking occupational health and safety measures on the ground that the employee works remotely.

This extraordinary situation will also give rise to many legal disputes. Throughout all these processes, it will be in the parties’ interest to obtain legal support from a lawyer in order to avoid any loss of rights.

Att. Ömer Çebi

Trainee Att. Batuhan Özata

This article is a general assessment prepared in accordance with the legislation in force on its date of publication; it does not constitute a legal opinion. This English text is a translation of the Turkish original; in case of any discrepancy, the Turkish version prevails.