In this article regarding CoronaVirus Law, we will evaluate with you whether the situation of the Corona Virus and, if caught, the situation of the personnel infected with the virus is within the scope of work accident in accordance with the Social Insurance Law No. 5510 and other relevant legislation.
A – What is the definition of work accident in accordance with the legislation in force, in which cases are the accidents considered within the scope of work accident?
Social Insurance and General Health Insurance Law No. 5510 13. The definition of work accident is given clearly in the article. Work accident pursuant to this article,
- While the insured is at work,
- If the insured works independently on his own behalf and account due to the work carried out by the employer,
- When the insured working for an employer is sent to another place outside the workplace as an employee, without performing his/her main job,
- In the times allocated for breastfeeding women insured to give milk to her child in accordance with the labor legislation,
- It is an event that occurs during the insured’s travel to and from the place of work with a vehicle provided by the employer, which makes the insured immediately or later physically or mentally disabled.
B – Within the scope of the Corona Virus epidemic, which has entered our lives intensively in the last few months and has been declared and accepted as a “pandemic” by the World Health Organization, if a staff member begins to show the symptoms of the virus while working and he is diagnosed with Corona Virus, the event in this case Can it be considered as an occupational accident?
There is no Supreme Court decision regarding the corona virus yet. However, the Supreme Court decision regarding the H1N1 virus, which is called swine flu , said, “The death of the truck driver, who was infected with the H1N1 (swine flu) virus during the trip to Ukraine due to the work being carried out by the employer, occurred after returning to Turkey due to an occupational accident. should be accepted” .
This decision clearly shows that contracting the virus while the act of doing business in this way continues by the Supreme Court is considered as a work accident. Accordingly, in the continuation of a work accident that will occur in this way, an action for pecuniary and non-pecuniary damages may be brought against the employer by the employee or their dependents.
All necessary occupational health and safety measures should be taken by employers in order to avoid any health problems for such situations, which are considered and accepted as work accidents by the Supreme Court.
- Risk analysis should be done by employers against Corona virus.
- Instruction letters on what can be done to prevent the epidemic should be posted in the visible places of the workplace.
- It is necessary to disinfect the workplaces regularly and to have disinfectant solutions in the appropriate places of the workplace.
- If regular checks are made by the workplace doctor, and if any personnel are found to have symptoms of a coronavirus epidemic, these personnel should be immediately directed to the authorized health units.
- However, personnel must be provided with masks, gloves and disinfectants, if necessary, along with personal protective equipment.
- And it is absolutely necessary to cancel any domestic or international travel (which is not possible at the moment, since international flights have already been suspended with the decision taken).
C- What are the rights of the employees in case the necessary measures are not taken by the employers or if the work stops at the workplace due to the virus epidemic?
In this case, there are a number of rights granted to employees by law;
1- Occupational Health and Safety Law No. 6331, article 13- Right to refrain from working: In case the necessary precautions are not taken in accordance with this article, the employee’s performance of work ceases and the right not to work arises.
Of course, there are some conditions for this. According to the law; “…Employees who are faced with a serious and imminent danger may apply to the board, and in workplaces where the board does not exist, to the employer, and request the determination of the situation and the decision to take the necessary measures. The board convenes urgently, and the employer immediately makes its decision and determines the situation with a report. The decision is communicated to the employee and employee representative in writing. (2) If the Board or the employer decides on the employee’s request, the employee may refrain from working until the necessary measures are taken. The wages of the employees during the period when they refrain from working and other rights arising from the laws and employment contracts are reserved. (3) In cases where the serious and imminent danger is unavoidable, the employees leave the workplace or the dangerous area without having to comply with the procedure in the first paragraph and go to the designated safe place. Employees’ rights cannot be restricted due to these actions. (4) Employees with employment contracts may terminate their employment contracts in accordance with the provisions of the law to which they are subject, in cases where the necessary measures are not taken despite their requests. Public personnel working under a collective agreement or collective bargaining agreement are deemed to have actually worked during the period when they are not working according to this article.
2- Termination of employment contract by the worker with just cause in accordance with article 24/I (b) of the Labor Law: The text of this article It is in the form of “if the employer or another worker with whom the worker has a close and direct contact with a contagious disease or is incompatible with the worker’s work” , and within the scope of this paragraph, it is possible for the worker to terminate the employment contract with just cause.
3- Termination of employment contract by the worker with just cause in accordance with article 24/III of the Labor Law: If the text of this article is “There are compelling reasons that will require the work to be stopped for more than one week in the workplace where the employee works” , and in accordance with this regulation, if the workplace is closed for more than 1 week due to the Corona Virus (Covid-19), the employee has the right to terminate the employment contract with just cause.
In the case of a termination in the aforementioned manner, the employer will be obliged to pay the employee’s severance pay, since the employee has terminated the employment contract for just cause.
To summarize briefly, if the employee catches the Corona Virus while he is doing his job, the employee will be considered as having had a work accident. As a continuation of this, the employee may have the right to file a lawsuit for pecuniary and non-pecuniary damages against the employer depending on the work accident.
However, within the scope of this epidemic, employers will need to take some precautions, as we have mentioned in detail above, in order to encounter such work accidents.
In case the necessary measures are not taken by the employer or in cases where the work in the workplace is stopped for more than one week, the employees have the right to terminate their employment contracts with just cause within the scope of Article 24/I (b) of the Labor Law and Article 24/III of the Labor Law, and employers also have the right to terminate such a job. In case of termination of employment, the employee who terminates the employment contract will have to pay severance pay.
Senem ATALAY
Lawyer / K&P Legal Law Firm
