17 Sep 2021
What risk mitigation efforts should the prudent employer take before employees return to the workplace?

In light of the relevant provisions of the Turkish Code of Obligations, the Labor Law, and the Occupational Health and Safety Law, employers are obliged to take all necessary measures to ensure workplace health and safety. Employees, in turn, are required to comply with such measures. The measures to mitigate health risks in the event employees return to the workplace include, but are not limited to, the following:

  • Identify any and all risks to the workplace posed by COVID-19;
  • Identify and protect against risks that can be avoided;
  • Identify and inform employees about unavoidable risks;
  • Combine collective health measures with individual ones;
  • Develop policies concerning the technology utilized at the workplace, work organization, working conditions, and social relations and the work environment to help prevent contagion; and
  • Inform and instruct employees about the measures taken and specify steps required for their adherence to such measures.

Tips for Employers:

  • Consult the daily updates provided by the Turkish Ministry of Health on their website to remain abreast of statistics and guidance on best practices during the pandemic. Consult also the World Health Organization’s “technical guidance on COVID-19,” provided on their website.
  • The Turkish Ministry of Health has published guides for specific sectors and workplaces, including, for example, nursing homes, grocery stores, banks, hotels, and airports. Employers should consult the Ministry’s website regularly to see if there is any guidance for their industry specifically. (Consult the Ministry’s “Guidance to COVID-19 Outbreak Management and Working” in English, authored by the country’s recently-formed Scientific Advisory Board, which contains useful information on measures to be taken in specific locations and business sectors to prevent the spread of the virus.)
  • The Ministry has also published sample posters on their website that contain warnings and best practices for employees and customers. Employers should consult these posters and decide if the workplace would benefit from using them (even if with some stylistic or content-based alterations).
  • Employers can develop a detailed action plan that includes concrete and practical steps such as ensuring sanitation of high-touch surface areas including chairs, keyboards, flushes, light/power switches, etc., ensuring that fire extinguishers and similar equipment work, reducing touch points, and considering switching to self-cleaning technology, to the extent possible.
  • While the recommendations here are mostly applicable to office environments, note that some could be pertinent to other work environments as well.
Who should be involved in the decisions to return to the workplace?

Ordinarily, the decision to return to the workplace is made by the employer. However, given the collective health risks associated with the pandemic, employers are strongly encouraged to move forward with reopening and/or returning to the workspace in consultation with Government stakeholders, health specialists and their employees. While the level of steps taken will, of course, depend on the nature of the business (see, for example, special guidance by Turkey’s Health Ministry on normalizing operations for the healthcare industry), ideally, HR, Legal, and IT should all be involved in the decision-making process. 

If applicable, it is also advised that employers consult with trade unions, employee representatives or any taskforces dedicated to occupational safety that may have been formed in light of or before the pandemic.

Tips for Employers:

  • Employers are encouraged to understand that collective decision-making may manifest itself in many and varied forms, ranging from regularly informing employees about the steps being taken to actively involving employees and/or healthcare specialists in the decision-making processes concerning returning to the workplace.
  • Employers should survey employees regularly to see if their attitudes toward reopening, change over time and after significant developments (e.g., a surge in cases or an improvement in efforts to combat the spread of the virus such as a vaccine).
What can the prudent employer do to ensure physical distancing in terms of the work space?

The Turkish Ministry of Health’s guidance is that a minimum social distance of 1 metre (roughly defined as “3-4 steps”) should be maintained between all persons in the workplace (including the eating halls and cafeterias) at all times. Additionally, and ideally, one person should occupy about an area of 10 m2.  Masks should be worn by persons present at the workplace at all times as well as maintaining social distancing. Some additional measures that help to maintain social distancing include:

  • Placing smart signs in various locations at the workplace to enforce social distancing, including floor markings that designate how and in which direction to proceed;
  • When entering or vacating workspaces, maintaining social distancing, and preventing congestion, by instructing employees to enter and leave sites one person at a time.
  • Exercising extra caution in enclosed spaces such as elevators, which Turkish authorities advise should operate at a reduced capacity of 1/3.
What can the prudent employer do to ensure physical distancing in temporal terms?

To ensure physical distancing in temporal terms, employers should consider, first and foremost, alternative employment arrangements. These arrangements may include working remotely (if the nature of the work permits) and transitioning to an online work environment (e.g., holding virtual work meetings) to the extent possible.  In the event that remote working is not possible or should be ended, having staggered starting times, changing shift requirements, splitting the workforce into different teams, and ensuring that returning to the workplace is a gradual and staggered process can all contribute to physical distancing.  For employees present at the workplace, ensuring that they take breaks in turn (and therefore not together) is also advisable.

Tips for Employers:

  • To the extent possible, consider redesigning the workspace so as to minimize social contact;
  • Encourage virtual meetings and gatherings and make sure that employees feel comfortable navigating the technology required for such gatherings; and
  • Use flyers, posters, and smart signs to ensure that social distancing rules are enforced.
What protections should the prudent employer consider implementing, in addition to physical distancing?

Some of the most basic and important protections in addition to social distancing include:

  • Communicating updates to employees on changes to work policies;
  • Ensuring that the workplaces are cleaned and ventilated frequently;
  • Reminding employees of basic hygiene requirements with an emphasis on frequent handwashing using soap;
  • Maintaining hygiene stations at various locations at the workplace that provide hand sanitation;
  • Providing masks and shields to employees, and other personal protective equipment as necessary (for single-use protective equipment, the employer should ensure that there are adequate supplies);
  • Encouraging employees to be self-conscious of any symptoms they may experience, and when they do, to seek treatment and make sure to isolate themselves;
  • Limiting or possibly prohibiting business travels, especially to destinations designated as pandemic “hot spots”;
  • Making sure that employees are up to date on most recent safety practices by conducting demonstration exercises;
  • Larger organizations may rethink their organizational structure and consider adding new positions to their workforce such as deliveries clerks and quarantine marshals;
  • Encouraging employees to follow “respiratory etiquette,”  including covering sneezes and coughs; and
  • Considering implementing new technologies at the workplace such as those that generate “heat maps” to determine high-touch surface areas that require frequent cleaning.
How can an employer screen its employees, including temperature testing, COVID-19 testing and questioning? 

Employers may, and are encouraged by the Ministry of Health, to conduct temperature testing. Employers may deny entry to persons whose temperature is above average or showing other symptoms and are encouraged by government authorities to direct employees in a similar situation to the closest healthcare facility. The Turkish legal framework on data protection and namely the Law on the Protection of Personal Data considers “[p]ersonal data relating to … health” to be of a “special/sensitive nature.”  Accordingly, Article 6 of the Law permits processing health data by those authorized for the purpose of protecting public health.  Authorized individuals permitted to conduct temperature testing may include relevant government personnel (especially when entering government buildings and sites) and workplace doctors and healthcare personnel. For other persons to conduct such testing and process the resulting data, the explicit consent of those subject to temperature testing is required. 

As for COVID-19 questioning, which may include questionnaires about prior travel history or whether the person is aware of any contact with an infected person or a risky situation in general, these questions are generally allowed, provided that they are concise, to the point, and not open-ended.  The questionnaire must be accompanied by a statement (preferably in writing) on the purpose of asking such questions. 

As for COVID-19 testing, an employer may ask that employees subject themselves to testing at healthcare facilities and hospitals designated as capable of testing for COVID-19 by the Turkish Ministry of Health.

According to the recent circular of the Turkish Ministry of Interior dated 02.09.2021:

  • Employers should inform employees, whose vaccinations have not been completed, about the risks they may face in their workplaces.
  • After this information, employers may request unvaccinated employees to have a COVID-19 PCR test once a week as of 06.09.2021 and record the test results.

If an employee is known to have tested positive for the virus, other employees may be informed of the fact, provided that the information is of a general nature and that the identity of the person infected with the virus is kept confidential.

Employees experiencing symptoms or who know that they have or may have been infected should promptly inform HR.

Tips for Employers:

It is argued by some authorities that the above-mentioned circular of the Ministry is unlawful and its implementation may be contrary to the Constitution, since such provisions can only by codified by means of the enactment of a law rather than the issuance of a circular. It is also argued the said circular is against the Law on the Protection of Personal Data. For this reason, employers may consider informing their employees and having their clear consent in accordance with the relevant legislation, regarding the recording of their test results. The employers should also be aware of the possibility that any dismissal of an employee for failing to provide PCR test results may be found unlawful by the courts, having regards to the question of the legality of the circular.

What are the requirements regarding travel – either to or from the office or business travel?

The employer must assess the risks associated with commuting to and from the workplace. Each employee’s particular circumstances may present unique risks that need to be taken into account.

Practical tips include:

  • Discouraging employees from using public transport, to the extent possible; relatedly, making adjustments to parking spaces to encourage the use of private cars and other non-public means of transportation, but also make sure that returning employees avoid crowded ride sharing, to the extent possible;
  • Moving shifts to avoid ensure that employees do not enter or exit the workspace during peak or rush hours;
  • Encouraging employees to try to avoid busy routes, if possible;
  • Limiting or prohibiting business travels, especially to those locations and regions designated as pandemic “hot spots,” and relatedly, remaining abreast of government travel restrictions; and
  • Holding, to the extent possible, individual discussions with employees to understand their particular circumstances and address any unique travel concerns they may have.
How does the prudent employer decide which employees should return to the workplace?

It is within the employer’s rights to decide which employees should return to the workspace. In making this determination, it is advisable to keep two things in sight: first, whether an employee’s physical presence at the workspace is essential. This might be the case, for instance, with employees whose manual labor cannot be substituted by remote operations. Second, some employees may be of certain risk groups whose exposure to COVID-19 might result in more severe health consequences than others. More senior employees and those employees with prior health conditions come under said risk groups. Regarding those employees who are at higher risk of infection or more vulnerable (also referred to as at-risk groups), it is advisable to let them continue their work remotely, to the extent possible. 

Tips for Employers:

  • Employers might start implementing a procedure whereby those who wish, may voluntarily return to the workplace. It is important to note that for some employees remote working may pose additional risks and problems (e.g., their home or alternative work space may be less conducive to working efficiently for material or social reasons), and therefore they may volunteer to resume their work at the workplace.
What if an employee refuses to return to the workplace?

As a general principle, all employees have a legal obligation of loyalty with respect to decisions made by the employer.  Accordingly, an employee’s refusal to return to the workplace, despite the employer’s request to that end, will constitute a breach of said obligation. Only under exceptional circumstances, namely when there is a serious, imminent, and unpreventable threat to employee safety can an employee refuse to be physically present at the workspace. In most cases, provided that the employer takes reasonable preventive measures against the spread of the virus, employees will have to return to the workspace.

Tips for Employers:

  • If and when an employee refuses to return to the workplace, it is advisable to discuss the employee’s concerns and try to address them, before proceeding with disciplinary and other legal sanctions.
What other considerations should the prudent employer be thinking about at this time?

The pandemic has resulted in an unprecedented shift to remote working in Turkey, which provides employers with the opportunity to develop their know-how on the risks and advantages of remote working in the country.

Some employers are either considering or have implemented permanent work-from-home arrangements. Employers, who want to or have implemented remote working arrangements permanently, are recommended to adapt their contracts and arrangements with employees to the new working order, by considering the relevant legislation on the matter. Prudent employers should also assess how such arrangements would impact personnel well-being, profitability, and efficiency.

What are the safety and employment issues for consideration regarding the vaccines?

The answer to this question is still unclear from a Turkish law perspective. Currently, there is no specific law or administrative regulation that mandates vaccination. Vaccination is considered a substantial interference with one’s bodily integrity – a fundamental right under Turkish law. Some argue against mandatory vaccination based on the fact that a substantial interference such as this must be based on law, as opposed to administrative or executive regulations, and that there is currently no law to this effect: the primary legal provision regarding mandatory vaccines remains an unamended article of the Public Health Law which dates back to 1930. That article enumerates a list of diseases against which the government can mandate vaccination. Given that the article was passed in 1930 and not amended thereafter, COVID-19 is not among those enumerated diseases. Thus, opponents of mandatory vaccines argue, employers are barred from requiring their employees to have the COVID-19 vaccine, as there is no legal basis for doing so.

Others still argue that, given the unprecedented nature of the pandemic and the public health threat it continues to pose, and based on employers’ general obligation to take all necessary measures to ensure workplace health and safety, which is indeed based on law, employers must be permitted to require vaccination, if they deem it necessary. However, under current circumstances as outlined above, employers can only require employees to be tested for COVID-19, not to be vaccinated (it should be reminded that the recent circular of the Ministry is argued to be against the law). Furthermore, it is also still unclear whether an employer has the right to terminate an employee’s contract who does not submit the COVID-19 PCR test result despite the employer's request. Some argue that the employer can dismiss the employee, who does not submit the required test result, for just cause and without compensation, since acting contrary to the occupational health and safety measures is regulated as a justifiable reason for termination in the Labor Law. However, it should be noted that this is still a dissenting opinion, and the judicial approach is awaited.

Tips for Employers:

  • Consider implementing alternative measures such as remote working, if the nature of the work so permits.
  • Keep abreast of legal developments, as the legal status of mandatory vaccination is still being debated.
What issues arise in introducing Hybrid working?

According to the Remote Working Regulation dated 10.03.2021, an employer and an employee may decide mutually on the remote/hybrid working arrangement by entering into a written agreement.

The remote/hybrid working arrangement request can also come directly from the employee. Upon the employee's submission of this request in writing to the employer, the employer must notify the employee in writing of its decision within 30 days. While evaluating the request, the employer should consider the suitability of the nature of the work and the employee for the remote/hybrid working arrangement.

The most important steps when introducing a remote/hybrid working policy should include:

  • Deciding on the workplace’s overall approach to remote/hybrid working arrangement and defining remote/hybrid working arrangement with regard to the specific organizational context. This might include several different forms of remote/hybrid working arrangement depending on role requirements.
  • Ensuring that the employer’s equal treatment obligation is not breached by the implementation of remote/hybrid working policy.
  • Ensuring that all kinds of liabilities arising from Labor Law, Occupational Health and Safety Law and the relevant legislation are fulfilled.
  • Engaging managers and HR personnel, as well as employees and employee representatives, such as trade unions, before implementing a remote/hybrid working policy.
  • Developing a communication plan to share the remote/hybrid working policy with all employees.
  • Planning for and preparing organizational implications of remote/hybrid working arrangement on matters such as technology, employee wellbeing and safety, inclusion and performance management.
  • Supporting effective communication and cohesion in remote/hybrid teams.

Ergin Mizrahi
Senior Partner
+90 212 359 5794