Work Accidents within the Context of the Social Security Institution’s Circular Dated 07.05.2020 and Numbered 2020/12 About Covid-192020, Erdemir&Özmen Attorney Partnership
Work Accidents within the Context of the Social Security Institution’s Circular Dated 07.05.2020 and Numbered 2020/12 About Covid-19
The position of infectious diseases and of COVID-19 within this context, in Turkish Law
In Turkish Law, in the Regulation on the Surveillance and Control Principles of Infectious Diseases which entered into force on 30.5.2007, infectious disease is defined as “A disease which is transmitted from person to person by way of direct contact with an infected person, or indirectly, such as exposure to a vector, animal, product or environment, or by way of fluid exchange contaminated with the infectious substance, resulting from a microorganism or its toxic products”.
In spite of the fact that Regulation does not expressly refer to the COVID-19 infection, the Regulation refers to the MERS Coronavirus known as Middle East Respiratory Syndrome and the SARS Coronavirus known as Severe Acute Respiratory Syndrome, which are among the coronavirus-based infectious diseases. Therefore, we are of the opination that it will be appropriate to consider also the COVID-19 outbreak within the category of infectious diseases under the provisions of the Regulation.
In case a laborer catches an infectious disease while performing his work, is it possible to consider this circumstance within the context of work accident?
Pursuant to article 13 of the Social Security and General Health Insurance Law numbered 5510 (“the Law numbered 5510”), work accident is defined as follows.
“Work accident is an incident which occurs:
a) while the insurance holder is at the workplace,
b) due to the work being carried out by the employer or by the insurance holder, if the insurance holder is working independently on his own behalf,
c) as regards an insurance holder working under an employer, at the times when the insurance holder does not perform his main work by the reason that he has been sent on duty to another location outside the workplace,
d) as regards a nursing female insurance holder included in the scope of the subparagraph (a) of the first paragraph of the article 4 of this Law, at the times allocated for her to nurse her child pursuant to the labor legislation,
e) while the insurance holder is going to or returning from the location where the work is carried out, by means of a vehicle provided by the employer,
and which causes the insurance holder to be physically or mentally handicapped at that time or subsequently.
Within this context, in order for an incident to be characterized as a work accident, it is necessary that the insurance holder laborer suffers damage mentally or physically in consequence on an accident occurred as per one of the circumstances referred to by the article 13 of the Law numbered 5510 and that there is a causal link between the work accident and the damage suffered by the insurance holder laborer.
In the decision numbered E. 2018/5018, K. 2019/2931 as rendered by the 21st Civil Chamber of the Supreme Court of Appeals, it is stated that, in case a laborer dies subsequently as a result of the H1N1 virus understood to have transmitted due to the work being conducted by an employer, this circumstance shall be deemed to be a work accident. The definition of work accident is interpreted broadly by the Supreme Court of Appeals.
At this point, it is of importance to find where and when the coronavirus transmitted. This is because; it is apparent that the coronavirus, characterized as a pandemic disease, may probably transmit to the laborer either while the laborer is performing his task due to the work being conducted by the employer or while the laborer is at another location. In case it is found that the laborer has caught this disease due to the work being conducted by the employer, it is possible to consider this incident within the context of work accident and to hold the employer liable therefor.
Work accidents within the context of the Social Security Institution’s Circular dated 07.05.2020 and numbered 2020/12 about COVID-19
It appears that the matter “whether or not it is possible to characterize as a work accident the case that a laborer is infected by the infectious disease namely COVID-19 while he is performing his work at the workplace or outside the workplace” will come to the fore as a question that may be encountered frequently during these days that many individuals in the world and in our country are infected by COVID-19 in result of the outbreak.
The answers of all these questions are clarified in the Circular numbered 2012/12 as published by the Social Security Institution about COVID-19 on 07.05.2020 (“the Circular”). The Circular states that, in case the insurance holders catch the coronavirus disease, these circumstances shall not be regarded as a work accident or an occupational disease within the context of the Social Security and General Health Insurance Law numbered 5510 (“the Law”) and that COVID-19 should be included in the scope of “Disease” which falls outside these definitions.
As per the Circular, given the fact that coronavirus is an infectious disease, the employees who are exposed to the outbreak and resort to health institutions should be considered within the scope of “Disease”. Therefore, the employers do not need to make a work accident notification for precautionary purposes in respect of their employees infected by coronavirus, regardless of whether they are infected by coronavirus at the workplace or outside the workplace.
Does the Circular published by the Social Security Institution eliminate the indemnification liability of employers?
The Circular leads to many new debates due to its provisions. This is because; whether an incident may be considered as a work accident is mostly possible under a court decision at the judicial phase.
Yet, as is known, although all kinds of measures (provision of the necessary training and information to the employees, disinfection of the working environment, distribution of protective equipment to the employees) are taken by the employers during the outbreak, it is likely for the employees to catch coronavirus, due to the high risk of transmission, in their social lives or at their houses outside the workplace or the workplace’s annexes or at another location because of external factors, even if the employer fulfills his objective duty of care properly and entirely.
On the other hand, of course, it is also likely that the transmission will occur at the workplace, and this is likely to occur even by the reason that the employer has not taken the necessary measures and precautions at the workplace.
Therefore, considering also the fact that it is legally not possible for the Circular to modify the “work accident” definition prescribed expressly by the Law; we are of the opinion that, even in case the employer has not made such work accident notification within the context of the Circular, the criteria pertaining work accident should be reviewed as a whole in a possible lawsuit and that the indemnification liability of the employers do not terminate entirely.
In order to resort to the employer’s indemnification liability, it is necessary to determine that coronavirus has transmitted at the workplace due to the conducted work or resulting from the workplace conditions and that the employer is at fault in the transmission of the virus. However, given the fact that coronavirus has a long incubation period and that the number of days after which the coronavirus symptoms emerge varies accordingly and that the virus has a high spreading speed and stays alive for a long period on different surfaces, it is seen that it is not possible to find precisely where and how the virus is transmitted to the patient/laborer.
Furthermore, it should be underlined that it will be possible to say that the employer is liable if it is proved that the virus has resulted from the workplace or the workplace conditions and if it is also proved that the employer has not taken the necessary measures by acting at fault. At this point, there is no doubt that the employer is obliged to take the measures that will prevent coronavirus from spreading at the workplace.
This is because; the employer’s obligations are not limited to those prescribed by the Law numbered 6331 on Occupational Health and Safety and thus, the article 417 of the Turkish Obligations Code numbered 6098 also contains provisions regarding the employer’s obligation to take all kinds of measures necessary to ensure occupational health and safety at the workplace. Therefore, at the workplace, the employers must bring the health and safety measures in compliance with the changing conditions due to the coronavirus outbreak and must take all the measures that may affect the laborers’ health, by taking into consideration the recommendations of the World Health Organization and the Ministry of Health as well.
Since the employees are also under the loyalty obligation and under the obligation to cooperate with the employer for the purpose of ensuring their own and the other employees’ occupational health and safety, the employees have to protect themselves personally against coronavirus, use the equipment, e.g. protective masks and gloves, provided by the employer and comply with all the measures to prevent coronavirus from spreading.
In conclusion, the Circular numbered 2020/12 as published by the Social Security Institution on 07.05.2020 states that, in case the insurance holders catch the coronavirus disease, these circumstances shall not be regarded as a work accident or an occupational disease within the context of the Social Security and General Health Insurance Law numbered 5510. However, given also the fact that it is legally not possible for the Circular to modify the “work accident” definition prescribed expressly by the Law; we are of the opinion that, even in case the employer has not made such work accident notification under the Circular, the criteria pertaining work accident should be reviewed as a whole in a possible lawsuit and that the indemnification liability of the employers shall not terminate entirely.