ABSTRACT:
Some regulations have been envisaged to facilitate the working life of women Employees and Employees who adopt a child, and these Employees have been granted the right to leave by law. Employees in this scope may not be employed for more than seven and a half hours a day and no night work shall be carried out by these Employees. In addition, permission is granted for eight weeks before birth and eight weeks after birth. In the postpartum period, female Employees have one and a half hours of breast-feeding leave per day. Employees can also use unpaid leave as the half the working time for sixty days on first birth, one hundred twenty on second birth and one hundred and eighty on third birth or full-time leave for six month. These periods and conditions of employment of the Employee cannot be altered against the Employee.
EXPLANATIONS:
Pregnancy and postnatal work of women Employees actively involved in working life and the adoption status of Employees have certain regulations within the scope of Labour Law No. 4857 and related regulation.
However, the provisions of the Labour Law are also applied in terms of pregnancy and postnatal leave to Employees who work under a service contract in accordance with the Turkish Code of Obligations. The primary objective is to ensure that women remain in business life. The Constitution stipulates that the working conditions of women are specially protected, and that some measures taken by the State shall not violate the principle of equality.
In this context, pregnant or nursing Employees cannot be employed for more than seven and a half hours per day. In addition, pregnant women or women working after birth cannot have night work for one year. These periods can be extended with the doctor’s report, but cannot be shortened against the Employee. If it is determined by the doctor’s report that the female Employee cannot continue her current job; the Employee should be temporarily employed in another job as permitted by his or her health status. However, the pregnant woman or woman who newly gave birth cannot be overworked.
Article 74 of the Labour Law stipulates that pregnant women should be granted leave for eight weeks before and eight weeks after birth.
However, if the health conditions of the woman do not allow, these periods can be extended with the doctor’s report. During pregnancy, the Employee must be allowed by the Employer for periodic doctor checks. If the female Employee does not use the full eight-week leave before the birth and wishes to add this period to her post-natal leave and her employment is approved by the doctor’s report, the offer shall be accepted by the Employer. However, only the unused leave which has not been used up to the three week period before delivery can be transferred to the post-delivery period. The pregnant Employee cannot be employed after 37 weeks. Again in cases such as preterm birth, if the female Employee cannot use her prenatal leave, these periods are added to her postnatal leave.
The eight-week leave foreseen for use after childbirth is granted to the father in case of death of the female Employee. Likewise, one of the spouses who adopt a child under the age of three or the adoptive person shall be granted an eight-week leave from the date of the actual delivery of the adoptive child.
At the end of the prescribed leave periods before and after childbirth, the female Employee or the Employee who adopted a child under the age of three has been provided with some working facilities upon request. The first is the application of unpaid-leave as half of the weekly working time which is stipulated by law as 45 hours. This practice should be accepted by the Employer at the request of the Employee and applied for sixty days for the first birth, one hundred twenty days for the second birth, and one hundred eighty days for the subsequent births and in the case of multiple births, thirty days are added to existing periods. However, if the child is disabled, this practice can be carried out for three hundred and sixty days regardless of the periods specified. Partial work and other situations that are not worked during the period of leave foreseen in the law, cannot be completed to Employee on another date and the Employee cannot be called on a day which he/she has no shift.
As a second option, entitlement to full-time unpaid leave for up to six months to be used after postnatal is available for the women Employees and a spouse or adoptive in case of adoption of children under the age of three. However, this period cannot be taken into account in the calculation of the right to paid annual leave. The employer does not pay any fee for the periods of unpaid work during the unpaid leave granted both part time and full time. If the Employee using unpaid leave starts to work without completing the leave period, it is not possible to benefit from the remaining right to unpaid leave again.
After the expiry of the statutory leave periods, if both parents are working, only one parent or parent who has the child custody or the Employee who adopt the child alone can apply for part-time work up to the beginning of the month following the start of the compulsory primary school age. It is possible to employ a new Employee for the non-employed period. If the part-time Employee returns to work by submitting a written notification to the Employer at least one month in advance, the employment contract of the Employee who is temporarily employed in the absence of the Employee shall automatically terminate.
Apart from the above-mentioned periods, the female Employee who starts to work is given one and a half hours of breast-feeding leave per day until the child turns one year of age and this period is considered as the periods worked. The use of a breast-feeding leave is mandatory and it is not possible for the Employee to waive the periods granted for child care. The Employee should decide on the times when the breast-feeding leave will be used. The breast-feeding leave which can be used in conjunction with the Employee’s request cannot give right to use of a cumulative leave exceeding the purpose of the provision.
The envisaged regulations and leave periods do not give the Employer the right to terminate the employment of the Employee and the female Employee shall not be discriminated against due to pregnancy or maternity. However, the employment contract may be terminated without notice by the Employer if the Employee has not started work and does not use his legal leave after six weeks have passed after maternity leave periods. If the Employee is forced to work in contradiction with the regulations, an administrative fine of TL 2,293.00 is imposed on the Employer for the year of 2019.
