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Measures To Be Taken By The Employers Within The Scope Of Occupational Health And Safety Regarding Coronavirus
Coronavirus epidemic disease (“Coronavirus”) that first occurred in Wuhan, China and had a wide impact on the world in a short time, was declared as pandemic by the World Health Organization on March 11, 2020. In our country, the effects of the virus are trying to get minimized through measures such as school closures, travel prohibitions, quarantines, home-office practices and curfew for citizens over the age of 65.
Since preventive measures should also be taken in workplaces which are the common areas of use in order to limit the spread of the Coronavirus and to combat the epidemic, working activities have been either completely stopped or restricted by many employers, or the method of working remotely or working from home has been applied by the employers in the private sector. Although it is possible to work remotely or working from home in workplaces with technological infrastructure, occupational health and safety measures must be taken by employers in workplaces where the remote working model cannot be applied due to the nature of their job.
In addition, the basis of the regulations for protection of employees is based on the Constitution and the Labor Code No. 4857 and the employers have many responsibilities depending on the managerial authority in workplaces. The most important one of these responsibilities is taking necessary occupational health and safety measures in the workplace within the scope of the employer’s supervision obligation.
The measures to be taken by the employer are included in the Code No. 6331 on Occupational Health and Safety (“Code“). According to Article 4 of the Code, the employer is obliged to ensure the health and safety of the employees those obligations are listed as follows:
- Taking necessary measures for the safety and health protection of workers, including prevention of occupational risks and providing information and training, as well as providing the necessary organization and means and ensuring that these measures are adjusted taking account of changing circumstances and aiming to improve existing situations,
- Monitoring and checking whether occupational health and safety measures that have been taken in the workplace are followed and ensuring that nonconforming situations are eliminated,
- Carrying out a risk assessment or getting one carried out,
- Taking into consideration the employee’s capabilities as regards health and safety where he entrusts tasks to an employee,
- Taking appropriate measures to ensure that employees other than those who have received adequate information and instructions are denied access to areas where there is life-threatening and special hazard.
The concept of risk assessment mentioned in subparagraph (c) of paragraph 1 of the said article is defined in Article 3 of the Code as follows:
“Activities required for identifying hazards which are existing in or may arise from outside the workplace, analyzing and rating the factors causing these hazards to turn into risks and the risks caused by hazards and determining control measures”
As it is understood by the regulation, after determining hazard of Coronavirus, employer is going to decide on risk control measures by analyzing this hazard, make related documentation and renew all the work to be done in general terms according to the current situation. In this way, the measures such as informing workers about virus and ways of protection, conducting disinfection exercises at workplaces, supplying protective materials to workers should be agreed. On the other hand, guidelines, presentations and informative texts published by the Turkish Ministry of Health on their official site should be printed as posters and necessary information should be provided to employees at the workplace. In addition, getting services from experts and organizations outside the workplace will not eliminate the responsibilities of the employer as stated in the Code. If the employer violates his obligations arising from the Code, both criminal and legal responsibilities will arise.
Furthermore, workers have the right to request for necessary measures to be taken. In the Article 13 of the Code, it is regulated that employees who face with serious and imminent danger, may request to determine the situation and take the necessary measures from the board of occupational health and safety or directly from the employer in workplaces where the board is not existing. Besides having the right to refrain from working until necessary measures are taken, the workers are also entitled to terminate their employment contracts on the basis of Article 24 of the Labor Code if the necessary measures are not taken despite their demand.
2. The Evaluation On Whether The Employee Is Infected With Coronavirus Epidemic Will Have The Characteristics Of Work Accident
According to Article 13 of the Code No. 5510 on Social Insurance and General Health Insurance, work accident is the incident which occurs;
- When the insurance holder is at the workplace,
- Due to the work carried out by the employer or by the insurance holder if he/she is working on behalf of own name and account,
- For an insurance holder working under an employer, at times when he/she is not carrying out his/her main work due to the reason that he/she is sent on duty to another place out of the workplace,
- For a nursing female insurance holder under item (a) of paragraph one of Article 4 of this Code, at times allocated for nursing her child as per labour legislation,
- During insurance holder’s going to or coming from the place, where the work is carried out, on a vehicle provided by the employer, and which causes, immediate or delayed, physical or mental disability in the insurance holder.
In the Decision No. 2018/5018 E. 2019/2931 K. of the 21st Civil Chamber of the Supreme Court;
The definition of a work accident was interpreted broadly by the Supreme Court.in this decision which mentions an employee who infected with the H1N1 virus due to the work being carried out by the employer, the later death of the worker was accepted as a work accident .
The important point is determining where and when the Coronavirus is transmitted. Since the Coronavirus, which is described as a pandemic disease, can be transmitted to the worker due to the work being carried out by the employer, as well as the possibility of being transmitted in another environment. If it is identified that the employee is infected due to the work carried out by the employer, the incident can be evaluated within the scope of the work accident and the employer can be held responsible.
Furthermore, in remote working application; even though every accident that may occur at home is not a work accident, if the employees who will work remotely have an accident while performing their duties, the accident will be considered as a work accident even if it occurred at home. Therefore, employers who will apply working remotely should inform their employees in terms of occupational health and safety and obtain the approval of the them regarding the information. Although home is not directly considered as workplace and the employer is not authorized to intervene firstly, in cases such as the occurrence of the accident due to the equipment provided to the employees -for example the employee being caught in electric current while working at home due to malfunctions in the electronic equipment supplied by employer- since there is a possibility of being faced with a work accident, checking equipment regularly provides to minimize risks.
There are lots of measures that employers must take in their workplaces within the scope of Occupational Health and Safety regulations against the Coronavirus which shows its effect all over the world and in case the employer violates these obligations, his criminal and legal responsibilities will arise. In addition, if it is determined that the employee is caught with Coronavirus epidemic due to the work being carried out by the employer, this situation will be accepted as a work accident and the employer’s responsibility will also arise.