The COVID-19 pandemic and the measures put in place in countries around the world – including Turkey – has compelled employers and employees to adopt a new vision for work, such as work from home.
Now, nine months after the pandemic began, home-office remote work has proven so effective, it could become part of the post-pandemic future. But remote work raises a host of legal and administrative challenges. This article – based on the 12 January 2021 webinar The Future is Now: The New World of Work in Turkey and hosted by employment experts and counsels Sinan Abra and Inci Alaloglu-Cetin with CMS Turkey – discusses how homeworking impacts the traditional office environment, and the implications for workers and companies.
Homeworking in Turkey
As in most countries in the world, the COVID-19 pandemic and the restrictions put in place by the Turkish government to safeguard its people have had a profound impact on employment in Turkey.
Also, like many countries, Turkey implemented 'homeworking' as a means of allowing businesses to continue in the face of the pandemic and restrictions. Homeworking in Turkey is regulated by the following pieces of legislation: Turkish Labour Law, Turkish Code of Obligations and the Turkish Data Protection Law with new regulations specifically addressing homeworking anticipated in the near future.
To lawfully implement homeworking under normal circumstances, employers are required to include certain clauses in employment contracts, such as:
- A direct agreement that the employee will conduct work from home or by using 'mobile devices';
- Specific provisions that all necessary equipment and maintenance will be provided to allow employees to fulfill their duties while homeworking; and
- Provisions for a system for clear and regular communication with these employees.
Turkish law also states that exceptional circumstances, such as the current pandemic, enable employers to implement homeworking without an explicit agreement between the parties. However, in the post-pandemic world, normal legal standards will have to be met for homeworking to continue.
According to CMS employment expert Inci Alaloglu-Cetin, many Turkish firms started to implement homeworking on a permanent basis. Almost a year after the start of the pandemic, homeworking has been so widely and successfully executed in Turkey "it is almost as if offices are no longer necessary" for certain firms, she said.
With employment disruptions due to COVID-19 likely to continue for up to another year, CMS's Alaloglu-Cetin suggests that – in addition to the above provisions – employers make sure that homeworking policies are included in the company's internal regulations.
An important result of the pandemic in Turkey has been the government's ban on terminations with exceptions permitted in the following circumstances only:
- When serious breaches in trust arise between employees and employers (e.g. violations of the law or company policies, harassment, sexual harassment, drug usage, employee refusal to comply with instructions);
- Upon the conclusion of employee agreements with definite terms;
- Upon the closure of the employment workplace and the conclusion of business operations; and
- At the conclusion of construction works (or another project) that the employees were originally hired for.
This restriction on terminations will be in place until 17 March 2021 and could be extended until 30 June 2021 and the government can penalise any company that terminates employees for reasons not stated above with fines assessed according to the "gross minimum wage on the date of termination" and – if necessary – based on court precedents.
Like many countries in Europe, the Turkish government has implemented a "short-time" work allowance programme that helps companies remain in business and retain their workforce by paying a portion of employee salaries. Launched during the pandemic and in place until 28 February 2021, companies are eligible to receive this allowance if:
- Working hours in the company have been decreased by at least one-third;
- Company operations have been suspended for at least four weeks due to crisis or a force majeure event (i.e. the pandemic);
- Each employee worked a minimum of 60 days without interruption prior to the start of the short-term working period and is registered with Turkey's social security office; and
- Each employee has paid unemployment insurance premiums equal to at least 450 days over the last three years.
A company is limited to three months on the short-time work programme.
According to CMS's Alaloglu-Cetin, the digitalisation of working procedures represents a natural extension of homeworking. One of the most important features of digitalisation is the electronic signature or e-signature system, an innovation implemented in 2004 that has allowed certain agreements to be concluded during the pandemic without the parties having to meet in person.
Currently, e-signatures enjoy a limited application in Turkey utilised mainly for online administrative and governmental services, such as the National Judicial Network Platform (UYAP), Registered Email (KEP), Central Registry Record System (MERSIS), and E-Notification (E-Tebligat).
As it stands, Alaloglu-Cetin states that important Turkish institutions such as the Labour Courts do not recognise digital innovations such as e-signatures, requiring documents in hard copies with wet signatures. "The legislation in Turkey concerning digitalisation of the work environment is not sufficient," she explained, and will need to be updated before digitalisation can be broadly adopted by the business sector.
Health and Safety
Homeworking employees enjoy the same protections they would have if still in the office, explains CMS employment expert Sinan Abra. Turkish legislation such as the Occupational Health and Safety Law (No. 6331), the Labour Code and various healthy and safety communiqués require employers to ensure the health and safety of employees even when working at home.
Specifically, the Turkish legal environment requires that employers do the following for their homeworking staff:
- Conduct an assessment of the risks the employee faces in his home office;
- Based on this assessment, instruct an occupation health officer to advise the employee on the best ways to mitigate these risks;
- Ensure that each employee acknowledge that he has accepted and implemented this advice;
Further, Turkish employers must also ensure that a homeworking employee is not treated in a discriminatory manner with respect to social security and that such employees are registered with the Turkish social security agency.
Ensuring the health and safety of employees can also protect a company from liability. According to CMS counsel Abra, injuries sustained by homeworking employees in the performance of their duties will be considered "occupational accidents" even if these events occur in the home. In these situations, employees will be entitled to make social-security claims, including sickness pay or the covering of medical expenses. If it is deemed that the accident occurred due to employer negligence, the business may be liable for these costs.
Explained Abra: "It is vital for the employer to assess the risks that could be applicable to an employee working at home and advises the employee accordingly so that accidents do not occur."
In cases where employers take appropriate precautions, even if an accident occurs, the company's liability is minimised.
COVID-19 as a work-related accident
Currently, a major question regarding health and safety is whether falling ill to COVID-19 can be considered a "work-related accident". According to CMS's Abra, the answer is yes. An employee who contracts COVID-19 while performing employment-related duties will be deemed to have suffered a work-related accident, and will be eligible for social-security entitlements, such as sick pay and compensation for medical expenses. If the infection occurred as a result of employer negligence, the company will be liable for these costs.
However, it should be noted that COVID-19 is not currently recognised as an "occupational illness"; which, if accepted, would have granted employees a more beneficial regime with respect to legal procedures and possible remedies.
Protection of Personal Data
Because the health status of employees is always considered highly sensitive, the pandemic carries weighty data-protection implications, regulated by the following laws:
- Turkish Data Protection Law (No. 6698);
- Rulings by the Turkish data Protection Board;
- Turkish Labour Law; and
- Various second legislation and government communiqués.
As a result, the crisis fostered by the pandemic does not exempt employers from adhering to the "general principles" of data protection, such as:
- Ensuring that the personal data of employers are handled in a lawful, fair and accurate way that limits the processing of personal data to that which is essential;
- Data protection regulations must be followed no matter how serious the pandemic and the sense of urgency surrounding it grows; and
- Safeguards must be in place to prevent the excessive or unnecessary processing of personal data as a result of COVID-19.
Data protection for homeworking staff
The communication limitations of the homeworking relationship might compel some employers to employ extraordinary means of data processing to monitor the working habits of home-based employees.
Generally, basic monitoring of internet activity and connectivity does not represent a violation of privacy, and can be conducted. But when monitoring homeworkers, employers must ensure the following:
- Employees are informed of monitoring methods and that this reporting is conducted in line with the Labour Code and data-protection laws (i.e. such monitoring should be mentioned in employment agreements and a separate data-privacy notice should be delivered to the employee); and
- The monitoring must not be excessive (i.e. private communications should not be monitored and employers should not conduct questionable practices such as "spontaneous screen shots" of employee computers).
Processing health and location data
Even though some employers may consider the health-status of employees a community issue, the processing of employee health data is protected by law and subject to strict regulations and technical and administrative safeguards.
CMS's Abra points out that many Turkish companies are processing health data at the instruction of the government. Because this information is required by the state, this processing is legal, but Abra warns that companies should understand the data-protection implications of its storage. When archiving personal data, all standard rules apply.
Turkish employers, for example, can measure the temperature of employees in order to detect possible infections, but if this data does not indicate signs of illness, it should not be recorded or retained. Health data that suggests an infection can be stored, but must be deleted when no longer pertinent (e.g. after the pandemic or the recovery of the individual, etc.).
If an employee suffering from infection shares pertinent additional health information with the firm, the company physician should be the only one with access to these reports.
The HES Application is a government-approved system that records health and location data of citizens, and can be used by companies to curb the spread of infections. For example, airline companies can access the HES App to determine if a potential customer is infected and when necessary prevent an ill individual from boarding a flight. Despite the public-health benefits of this application, any data culled from it should be treated confidentially.
According to Abra, the data should not be retained longer than necessary and cannot be shared.
For more information on implementing Homeworking in Turkey, contact your CMS partner or local CMS experts: Sinan Abra and Inci Alaloglu-Cetin.