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    Managing HR Through COVID-19

    A Practical Guide For Multinational Employers

    Prepared by Kolcuoğlu Demirkan Koçakli

    As at March 30, 2020

     

    Overview

    This publication will help employers manage HR legal and practical issues arising from COVID-19.

    It covers:

    1. Good Practice Guidance giving high-level consideration;
    2. An Action Point Checklist drilling down into the detail; and
    3. Answers to Key Questions facing employers in Turkey.

    This publication has been coordinated by Mayer Brown and forms part of a wider Mayer Brown Guide for Multinational Employers, which is available here.

    It has been prepared by Kolcuoğlu Demirkan Koçakli and is published with their kind permission. With thanks to:

    Kolcuoğlu Demirkan Koçakli  |  Maral Minasyan  |  mminasyan@kolcuoglu.av.tr  |  www.kolcuoglu.av.tr

     

    Good Practice

    There are a number of key good practice points that employers across all jurisdictions will want to consider in connection with COVID-19:

    1.  Keep up-to-date with accurate information

    It is difficult for an employer to make proper decisions based on rumors, assumptions and “fake news”. Therefore, it is important for an employer to stay up-to-date with accurate information and make decisions based on facts. Employers should monitor official sources, including government advisories and the World Health Organization (“WHO“) website, and check that the information they receive is factually correct.

    2.  Know where your employees are and where they have been

    An employer cannot keep its employees out of harm’s way if it does not know where they are and where they have been. As outbreaks of COVID-19 occur in various parts of the world, keep track of which of your employees could be at risk.

    Although the Turkish Personal Data Protection Law classifies travel data requested from employees as personal data, within the scope of the employer’s legal obligation to take the necessary measures to maintain its employees’ health and safety, the employer can collect travel data without the employee’s consent. However, personal data processed in this way must be processed in accordance with the general principles of the Turkish Personal Data Protection Law, kept confidential and stored exclusively in connection with the stated purpose under the Law.

    3.  Communicate with your employees

    Employers should communicate openly and often with their employees so that they have the information they need to help keep themselves educated and updated about the coronavirus. It should not assume that all employees will educate themselves or have access to the same sources of reliable information. Putting everyone on the same page will help the employer and its employees move together in a timely manner as a business. Open and timely communication will help build trust and reduce the spread of rumors that may cause anxiety in the workplace.

    4.  Provide a safe platform for employees to raise concerns

    Employers should give employees a safe platform where they can raise concerns on all aspects related to work, from mental health to the risk of having contracted COVID-19. This is not just good employee relations, but early detection and doing something about it can help to reduce the spread of the virus. It is one thing to have an employee assistance plan and ask employees to report issues, but if those who report are stigmatized or treated with contempt, employees may be deterred from reporting.

    There may be nervousness and anxiety in the workplace, and possibly even conflicts, given concerns about the virus. Employees should be given avenues to communicate such anxiety to their employer, so that concerns are addressed earlier and do not balloon into bigger issues.

    5.  If you can be flexible, then be flexible

    Employers should understand that this is a time of stress for all parties, including employees. Recognize that employees will have different needs depending on their circumstances (e.g., those with school-age children may need more time off as school classes are suspended).

    This time of uncertainty will pass but employees will remember how their employer treated them long after the threat of the virus has disappeared. A disgruntled employee may try to make it known to the world how badly their employer treated them. This may affect the employer’s brand and ability to attract and retain talent. The employer may then have to wait for another crisis or challenging time to get the opportunity to prove itself as a good employer.

    6.  One size may not fit all

    While consistency in treatment is generally to be favored, be conscious that one size may not fit all. For example, “work from home” or remote working may not work for everyone. The implementation of general directives should be checked against legal obligations under the contract of employment and local law.

     

    Action Point Checklist

    In general terms, the steps an employer needs to be taking now relate to four categories: Review, Communicate, Update and Travel. No list of action points will be comprehensive for all employers, but the following will form a good starting point.

    1.  Review

    • Review business continuity plans and how these would be maintained if employees are suffering from coronavirus absences.
    • Review existing sickness policies and procedures. Are they adequately disseminated to staff? Do they need amending?
    • Review contracts of employment. It may be relevant to establish whether or not individuals can be asked to undertake different work or at different locations or at different times from the norm.
    • Review the employer’s emergency procedures, e.g., if there is an infection and the workplace is closed on a temporary basis. If appropriate, carry out a test run of an emergency communication to see how robust the process is.
    • Ensure contact details for all staff are up-to-date.
    • Undertake a risk analysis of high-risk groups of employees, and what steps can be taken to try and reduce risks for those groups. These groups may include:
      • those who travel frequently to countries where there is currently or may well in future be a risk of infection.
      • those with health issues, such as asthma, diabetes, cancer, or those who are pregnant, who are more likely to suffer adversely if they become infected with the virus.
    • Review procedures in the office for preventing the spread of the virus, e.g. increased cleaning, availability of hand sanitizers and tissues etc.
    • Review planning for the possibility of large scale absenteeism. For example:
      • Identifying the essential positions within the business, what needs to carry on during an emergency, and what is the minimum number of employees required?
      • Identifying employees with transferable skills so that these essential positions can always be temporarily filled.
      • Considering flexible work patterns, such as employees working from home.
      • Identifying those employees who have the necessary IT infrastructure to work from home (e.g., remote access to the office computer systems).

    2.  Communicate

    • Identify an appropriate person as spokesperson/communicator of updates on policies etc., with appropriate credibility.
    • What, if anything, is said about absence from work for reasons other than ill-health, e.g., where an office is closed?
    • Assuming the employer has a health and safety committee, have there been any discussions with that committee about COVID-19 and its potential impact? If there is no such committee, the employer may want to consider setting one up.
    • Communicate as a matter of urgency with the high-risk groups identified in any risk review to ensure they are aware of their high-risk status and the measures that are being taken to assist.
    • Ensure managers are aware of the relevant workplace policies.
    • Consider issuing guidance to employees on how to recognize when a person is infected with the coronavirus. What are the symptoms, and what should one do if one is taken ill at home or at work? It is also important to emphasize that individuals may not recognize that they have the virus and so may not be exhibiting symptoms. Employees should be informed of the reporting procedure within their employer if they have a potential infection as well as any official reporting process.
    • Provide advice to encourage individuals to take a degree of responsibility for their own health and safety and to slow the spread of the virus. For example, advice on handwashing and use of sanitizer gels, coupled with a willingness to self-identify where it is possible that individuals have come into contact with individuals with the virus, have become infected themselves or have returned from private travel abroad to an area which turns out to be affected by the virus.
    • Make clear that where staff are ill, they must not come to work regardless, i.e. “struggle through”.

    3.  Update

    • Initiate a system to keep up-to-date, especially given the speed at which infection is spreading.
    • Consider establishing a committee on the employer’s side to coordinate responses and engage with any staff consultative forum, and with particular responsibility for staying up-to-date with public health updates.
    • How will employers communicate to employees regular updates on the coronavirus and its spread? As news develops, it is extremely important for an employer to be issuing fact-based updates, to avoid the possibility of fear being used by worried employees to make decisions about whether or not to come to work, whether to travel abroad, etc.
    • Who will have the authority to determine changes to policy and issue any new communications to staff?

    4.  Travel

    • Log employee travel before it is booked and check against the latest travel protocols.
    • Ensure staff know that this applies to personal travel as well as business travel.
    • Encourage staff to tell you if close family members with whom they share a house are travelling to infected areas.
    • Replace face-to-face meetings (especially those involving travel) with video conferences, telephone conferences, etc.
    • Consult/communicate about whether to encourage varied work patterns to avoid travelling on public transport at rush hour.

     

    Country Overview

    As at March 30, 2020

    1.  What are an employer’s main legal obligations?

    The main obligations of an employer’s legal liability associated with COVID-19 in the workplace include:

    • Complying with obligations under the employment contract (e.g., continuing to pay salaries and other benefits);
    • Complying with the Turkish Law on Occupational Health and Safety (the “OHS”) in order to devise a safe working environment and take necessary measures to protect its employees from diseases as far as reasonably possible; and
    • Treating all employees who have similar positions/qualifications equally unless there is a just cause, such as severance, performance, etc. (the equal treatment principle also applies to employees who may be working from home).

    An employer may also wish to review its existing private insurance policies (if any), at its discretion.

    2.  Do I need to prepare for and have in place a workplace plan to deal with COVID-19?

    There is no legal obligation in Turkey for an employer to have a workplace COVID-19 response plan. However, OHS requires all employers to, so far as reasonably practicable, ensure the safety and health at work of all their employees. In this respect, it is recommended that employers develop a policy on COVID-19 in order to have a plan to deal with this outbreak. Such a plan may set out reporting lines for employees who are planning to travel, the position of the company in the event of an outbreak and the steps to be taken after the outbreak.

    If an employer issues a workplace plan to deal with COVID-19, it is required to notify all employees of the plan. We also recommend that the employers obtain written confirmation from all employees’ of their receipt of this plan, either physically or through electronic means, as this plan will be an integral part of their employment contracts/working conditions, during its effective period.

    3.  What should a workplace COVID-19 response plan cover?

    The Ministry of Industry and Technology has a recommended list for the prevention of COVID-19 in Turkish.

    For general guidance on the contents of a workplace COVID-19 response plan, please see the Appendix, in conjunction with the Action Point Checklist.

    4.  Can I direct my employees to go home or stay at home if there is an outbreak?

    Yes, but the employer should continue to comply with its obligations under the employment contract (e.g., to pay salaries) unless otherwise agreed with the employee.

    5.  Can I direct an employee to see a doctor?

    The employer can only recommend that its employees see a doctor. It cannot force them to do so.

    6.   Do I have to continue to pay wages and provide other employment-related entitlements during a COVID-19 outbreak?

    Yes. The employer’s obligation to pay wages to employees continues during a COVID-19 outbreak unless the employment has ceased. An employer cannot refuse to pay wages simply because the employee is unable to attend the workplace or perform any work because of an outbreak.

    The employer may apply for a government-based “short term working allowance” for payment of its employees’ remuneration for up to three months, if the working hours (whether in the entire workplace or part of it) are temporarily reduced by at least one-third or the operation is completely or partly ceased for at least four weeks (regardless of whether this stoppage is continuous or not) as a result of a COVID-19 outbreak. In this case, the employer is required to apply to the Turkish Labor Agency, submitting the COVID-19 outbreak’s effect on its operations. If the Turkish Labor Agency approves the employer’s request, employees may be entitled to receive a short term working allowance from the Turkish Labor Agency. This allowance is calculated based on 60% of the employee’s daily income and in any event cannot be more than 150% of the minimum gross salary (i.e., TRY 2,943 for 2020). The employer is not allowed to dismiss any employee without having a just cause – as regulated under the Turkish Labor Law – during the short term working arrangement period due to a COVID-19 outbreak, in order to become entitled to receive short term working allowance. Short term working allowance applications within the scope of a COVID-19 outbreak are expected to be finalized within 60 days following the application date.

    Note that, in a force majeure event that prevents continuation of work (e.g., regional quarantines or imposition of curfew), the employer is obliged to pay only half of each employee’s salary for the first week following the occurrence of the event. If the force majeure event lasts longer than a week and it is not possible for employees to come to work, both the employer and employee are deemed entitled to terminate employment with just cause (in which the employee will be entitled to receive their statutory severance pay and other accrued labor entitlements).

    7.  Can I quarantine certain staff to certain parts of an office or send them to a different office?

    The employer may assign an employee to work at a particular part of an office if it is reasonably necessary to ensure public health.

    Sending an employee to a different office may also be possible, but it depends. In principle, an employer can unilaterally change working conditions based on its management right, if such change is in favor of the employee, or it would not affect the employee’s main rights and benefits. That being said, in general, employers are free to make a workplace change within the scope of their management right, if the new workplace in question is in the same province as the former one and not much would change in the relevant employee’s life with such change. However, if the new office is in a different province or so far away that is likely to constitute a material change to the employee’s life, then such change is considered to be a material change and requires the employee’s prior consent.

    8.  Can I direct my employees to report suspected cases of COVID-19?

    Due to data privacy legislation, the development of a formal policy on the reporting of suspected cases is not recommended. However, based on their obligation to protect their employees’ health, employers may encourage employees to report suspected cases.

    9.  Can an employee lawfully refuse to attend work if there is a COVID-19 outbreak?

    It depends but it is possible. An employee can only lawfully refuse to attend work if there is a material danger in the workplace (e.g., if a co-worker is infected by COVID-19).  Turkish Labor Law also entitles an employee to terminate their employment contract without notice or payment in lieu if the employer, the employer’s representative or a co-worker with whom the employee closely and directly works is suffering from a contagious disease.

    10.  Can I screen employees and customers before allowing them to enter the workplace?

    The data related to the health status of employees and customers are classified as sensitive personal data and can only be processed without obtaining the data subject’s explicit consent by authorized individuals, institutions and organizations to protect public health. Accordingly, it would be appropriate for the occupational physician to process the employees’ health data and inform the employer about the measures and precautions that can be taken. In the absence of an occupational physician, the employees’ express consent must be obtained. Customers’ express consent should also be sought if employers are proposing to carry out such health screenings before allowing customers to enter the workplace.

    CONTACT:  Kolcuoğlu Demirkan Koçakli  |  Maral Minasyan  |  mminasyan@kolcuoglu.av.tr  |  www.kolcuoglu.av.tr

     

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    Appendix:  Workplace COVID-19 Response Plan

    A plan should deal with the following:

    BEFORE AN OUTBREAK

    • Preventive measures.
    • Disinfecting the workplace regularly.
    • Maintaining good indoor ventilation.
    • Making sure that employees, suppliers and customers are aware of the employer’s plans in the event of an outbreak.
    • Ensuring sufficient supplies of appropriate masks, alcohol wipes, gloves, paper towels, thermometers, disinfectants, etc.
    • If employees are required to travel to areas known to have the virus, whether such travel is necessary.

    DURING AN OUTBREAK

    • The steps the employer will take to ensure the safety of employees while at work during a COVID-19 outbreak include how an employer will identify risks of employees becoming infected and how to minimize such risks. The employer may also wish to seek advice from government/official sources as to what steps need to be taken, e.g., quarantine requirements.
    • Communication strategies, such as how and what information will be communicated to employees, suppliers and customers.
    • Where employees will work, e.g., home, in the office or in alternative temporary offices.
    • At what stage will the workplace be closed and who will decide that.
    • How to deal with infection and/or deaths of colleagues, e.g., counselling.
    • A mechanism for determining whether employees, suppliers and customers will be allowed access to the workplace, especially if they show symptoms of being infected by COVID-19.
    • What to do with high-risk/exposure staff (e.g., pregnant, key employees and employees who travel).

    AFTER AN OUTBREAK

    • Ways to ensure that employees and customers have fully recovered before they are allowed back into the workplace.
    • Rehabilitation for sick employees returning to the workplace.

    Communication with employees and flexibility on enforcing requirements imposed on employees under their contract of employment will be important in maintaining employee relations and reducing anxiety and panic during an outbreak. Therefore, subject to local legal obligations and requirements, and depending on the circumstances, employers may wish to:

    • Discuss with staff the possibility of a workplace closure prior to closing.
    • Allow employees to take annual leave or unpaid leave once sick leave has been exhausted.
    • Allow employees to work from home.
    • Explore salary reduction or unpaid leave as an alternative to termination of employment where business has slowed down.

    Employers should make visitors to its offices aware of any health and safety hazards associated with entering the workplace before any intended visit, where reasonably practicable.

     

    This publication by Kolcuoğlu Demirkan Koçakli provides information and comments on legal issues and developments that may be of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek legal advice before taking any action with respect to the matters discussed herein.