The Covid-19 pandemic, which has caused many people to die around the world, still continues to affect our country. In working life, employees continue to work at risk due to this dangerous virus, employers take various measures to prevent the spread of the pandemic, protective equipment (like masks, gloves etc.) is distributed to employees by employers, informative articles are posted on what can be done about protection from epidemics in workplaces, workplaces are regularly disinfected. In case the employees catch Covid-19 due to the employer not taking the necessary measures or taking them incompletely, it is possible for the employer to be subject to legal sanctions and the employee’s termination of the employment contract with just cause according to the Article 24 of the Labour Law No. 4857 may come to the fore and the employee may be entitled to severance pay.
The measures that the employer should take in order to prevent the spread of the pandemic take its source from the “General Obligations of the Employer” in the 4th article of the Occupational Health and Safety Law No. 6331. At this point, it is necessary to draw attention to the phrase “risk assessment” in clause c of the relevant law. The definition of risk assessment is included in the 3rd article of the same law, and all the necessary studies to determine the dangers that exist in the workplace or that may come from outside, the factors that cause these hazards to turn into risks, the analysis and rating of the risks arising from the hazards, and the decision of control measures are all within the scope of risk assessment. The measures to be taken by the employer against Covid-19 are also a requirement of the risk assessment.
On the other hand, it should be noted that the measures to be taken by the employer regarding the Covid-19 pandemic are also a requirement of Article 417/2 of the Turkish Code of Obligations No. 6098. According to the relevant article, the employer is obliged to take all necessary measures to ensure occupational health and safety in the workplace and to keep the tools and equipment completely.
There are also measures that employees should take in order to prevent the pandemic. While following the instructions given by the employer, the employee must also act in accordance with the responsibilities arising from the Article 19 of the Occupational Health and Safety Law No. 6331.
Is it an Occupational Accident if the Employee is Infected with the Covid-19 Virus from the Workplace?
In the Occupational Health and Safety Law, occupational accident is defined as “refers to an event that occurs in the workplace or due to the conduct of the work, causing death or rendering physically integrity mentally or physically disabled.” In one of its decisions, the Supreme Court accepted the death of an employee who was infected with the H1N1 virus while traveling abroad for work, as an occupational accident. Therefore, similar to this decision, if the employee is infected with the Covid-19 virus from the workplace because the employer does not comply with the necessary protection measures, it can be considered as an occupational accident, and if the employer has a gross fault, the employee will be able to demand material/immaterial compensation from the employer. And also, the issue with whom the employee infected with virus interacts and from whom he/she contracted the disease is also important in determining the defect. As a matter of fact, these details can be determined through the records kept by the Health Directorates. If the reason why the employee is infected is not a person to be evaluated within the framework of “workplace”; since the causal connection will be cut, this situation cannot be accepted as an occupational accident.
Exceptions to Employer Liability
The way for the employer to get rid of the responsibilities that may arise due to occupational accidents and diseases is to have taken all the precautions in the legal regulations or if the occupational accident or disease is inevitable. For example, if the Covid-19 virus has mutated, gained resistance to all kinds of masks and disinfection products, and thus infected other employees, the existence of the principle of inevitability should be examined, and if there is the existence of the relevant principle, the responsibility should be shared equally between the employee and the employer.
In conclusion, it should be mentioned that PCR tests are considered as a medical intervention within the scope of Article 17/2 of the Constitution, for this reason, there is a prevailing opinion among legists that the employer cannot force their employee to have a PCR test. However, in accordance with the notification letter of the Ministry of Labour and Social Security General Directorate of Labour dated 02.09.2021, employees who are not vaccinated against COVID-19 may be required to have a PCR test, mandatory once a week, by the workplace/employer as of September 6, 2021 and the test results will be recorded for necessary procedures. Although the said article is not a legal regulation, it reflects the employer’s and employee’s obligation to observe occupational health and safety.
Ekin Kocaman
