The Effect of Epidemic Diseases on the Employment Contract

March 17, 2021

The Coronavirus (named COVID-19), which first appeared in Wuhan, China in 2019 has shown its effect all over the world in a very short time; Coronavirus detected the first cases in Turkey on March 11, 2019, is explained by the Ministry of Health. Although the process is very new, it is difficult to predict the harmful effects of Coronavirus on business relations and commercial life in the long term; there are already many opinions on the subject. In particular, employees and employers with different working conditions are considering how this epidemic shall affect these conditions and what rights they have under Turkish Labor Law No. 4857. The rights of both parties regarding the situations that may arise in this context are briefly detailed below.

A) Employer’s Obligation for Employees Coming from Abroad and Receiving a Resting Report for 14-Day.

Circular issued by the Ministry of Health with the date 14/03/2020, employees from abroad arriving in Turkey during the fourteen days shall be counted absent. In other words, employees shall not work during this period and shall be considered on leave. According to the Social Insurance and General Health Insurance Law numbered 5510 (“Law No. 5510”), employees who have received a rest report are entitled to incapacity benefit from the Social Security Institution (“SGK”) during their reporting period. According to the relevant article, temporary incapacity benefit is given for each day starting from the third day of temporary incapacity, provided that at least ninety days short term insurance premium has been reported within one year before the incapacity begins. Since the temporary incapacity allowance will start from the 3rd day, the incapacity benefit is not granted on the first two days of the report.

Within the scope of temporary incapacity, an allowance to be granted on the reporting days, the temporary incapacity allowance to be paid to the employee is half of the daily earning / premium-based regular earnings to be calculated following article 17 of Law No. 5510 and twothirds for outpatient treatments.

In some cases, employers may continue to pay wages for the period during which the employee was reported, in order not to victimize their employee. In this case, it would be an excellent solution to return the incapacity allowance that SGK shall give to the employee. In any case, the rest employee will not have a significant loss in terms of wages.

B) Shall Coronavirus Epidemic be Considered Force Meajure under Article 40 of Turkish Labor Law?

Following Article 40 of the Turkish Labor Law, the employer who cannot work or is not employed due to force majeure shall be paid half a wages every day for up to a week within the waiting period, and the employment contract is suspended within this period. Could the coronavirus epidemic, which is active today and is a global epidemic, be considered as the force majeure mentioned in the related article? In its case-law, where the Supreme Court explained the force majeure, it went through a sampling method as follows;

“…conditions such as disruption of transportation due to natural events such as snow, earthquake, and quarantine application due to epidemic disease are force majeure.”

Therefore due to Coronavirus, If Turkey on a regional or nationwide to be implemented in any possible way quarantine process, employees identified force meajure as a reason to prevent the coming to work in these conditions and Turkish Labor Law Article 40 finds the substance of the application. In this case, the employer is under an obligation to pay the employee half a wage day for the first week. However, if a possible quarantine process may take longer than one week due to the Coronavirus, the dominant view is that the employer now has a right to terminate the employee’s contract for justified reason.

C) Duty of Paying Wages in the Case of the Employer’s Closing the Workplace Temporarily by own It’s Initiative

If the employer closes the workplace as a result of his / her decision to prevent the spread of the virus and to protect his employee from the virus epidemic, without any official explanation or any administrative decision, the obligation to pay wages continues as the existence of force majeure shall not be stated.

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