The Employer’s Obligation of Health Oversight During the COVID-19 Pandemic
Ayça İzmirlioğluThe importance of employers’ obligation to protect the occupational health and safety of their employees has increased during the COVID-19 pandemic that has affected our country, as well as the entire world, and has led to numerous deaths. The “health surveillance” obligation, regulated by Article 15 of the Occupational Health and Safety Law (No 6331), states that it is the obligation of the employer to diligently protect employees and their workplace, especially against any outbreak. The health surveillance obligation depends on the kind of work performed at the workplace and is governed by many regulations. In this study, the duty, authority, and responsibility of workplace doctors that are regulated by the law are analyzed, and the legal procedure that workplace doctors and employers can apply to protect the health and safety of the employees during the COVID-19 pandemic are investigated. Moreover, the legal procedures that employers can apply if an employee avoids health checks during a pandemic and those that the employees can pursue in case of clear and imminent danger that they could be exposed to because of the noncompliance with the rules and regulations on the part of the employers are explained from a legal perspective.
İşverenin Sağlık Gözetimi Sağlama Yükümlülüğüne COVID-19 Salgını Bağlamında Genel Bir Bakış
Ayça İzmirlioğluPek çok insanın hayatını kaybetmesine yol açan ve bir biyolojik doğal afet olarak tüm Dünya ülkelerini olduğu gibi ülkemizi de etkileyen COVID-19 salgını karşısında işverenlerin işyerinde iş sağlığı ve güvenliğini koruma yükümlülüğünün önemi daha da artmıştır. İşverenin işçiyi gözetim borcu kapsamında 6331 sayılı İş Sağlığı ve Güvenliği Kanunu’nun 15’inci maddesinde hüküm altına alınan “Sağlık Gözetimi” yükümlülüğü, bilhassa salgına karşı çalışanlarını ve işyerini korumak maksadıyla işverenlerin titizlikle yerine getirmesi gereken yükümlülükler arasındadır. Sağlık gözetimi yükümlülüğü yapılan işin niteliğine göre çeşitlilik göstermekte olup, pek çok Yönetmelik’te düzenlenmiştir. Bu çalışmada işyeri hekimlerinin görev, yetki ve sorumlulukları incelenmek suretiyle özellikle 6331 sayılı Kanun kapsamında sağlık muayenesi yapılmasına ilişkin düzenleme irdelenecek ve COVID-19 salgını karşısında çalışanların sağlık ve güvenliğini korumak maksadıyla işyeri hekimlerinin ve işverenlerin başvurabileceği yasal prosedür incelenecektir. Ayrıca, pandemi sürecinde sağlık muayenesinden kaçınan çalışanlara yönelik işverenin başvurabileceği ve işveren tarafından yasal düzenlemelere ve prosedürlere uyulmaması durumunda maruz kalınabilecek ciddi ve yakın tehlike karşısında çalışanların başvurabileceği yasal yollar ve idari yaptırımlar konuya ilişkin yargı içtihatlarına da temas edilerek açıklanmaya çalışılacaktır.
The World Health Organization declared COVID-19 as a pandemic, and the obligation of employers to protect the occupational health and safety of employees in the workplace has increased due to the COVID-19 pandemic, which is a natural biological disaster that has affected our country and the whole world. It is inevitable for employers to fulfill their health surveillance obligations to primarily protect their employees and workplaces against the pandemic and to prevent the spread of COVID-19 in the workplace. Moreover, it would be appropriate to repeat the periodic health checks conducted by workplace doctors, especially for employees returning to work from working remotely during the pandemic.
In the Turkish Labor Legislation regarding the occupational health and safety of employees, many legal regulations, especially the Occupational Health and Safety Law 6331, require employers to comply with the obligations of the law to protect the occupational health and safety of employees. In this study, the requirement to carry out “health surveillance,” which is one of the obligations of the employers that are mentioned in Article 15 of the law, was considered. According to the article, “(1) Employer; ... B) is obliged to ensure the health examinations of the employees in the following cases:1 At the entrance to work, 2 In the change of work, 3 In case of demanding for their return to work after repeated dismissal due to work accident, occupational disease or health, 4) During the continuation of the work, according to the condition of the employee, nature and hazard class of workplace, at regular intervals determined by the Ministry ...”
In this study, the regulation aforementioned is discussed in detail, and the relevant obligations related to the pandemic are evaluated. It is both an obligation and a requirement for employers to seek the support of occupational health and safety professionals to ensure the occupational health and safety of their employees. In this context, as mentioned in the relevant regulation, employers can fulfill their health surveillance obligation by employing a workplace doctor. Therefore, the duties, powers, and responsibilities of the workplace doctor are also examined.
The sanction of the employer’s failure to conduct health surveillance is an administrative fine. If the employer fails to comply with the health surveillance obligation, and it results in an accident at the workplace or occupational disease, the employer will be both legally and criminally liable. This responsibility will be examined through the judicial system. Moreover, the workplace doctor is required to provide guidance and counseling to the employer to request employees to take the necessary precautions and to remove employees who are showing COVID-19 symptoms from the workplace for other employees to be able to continue to work and to ensure that the required security measures are taken. The workplace doctor should give written notification to an employer who does not consider these warnings and urgently take measures to control the deficiencies and faults reported by Article 8 of Law 6331.
Because of the absence of health surveillance in the workplace and necessary precautions, the right to refrain from working in a workplace that is in serious and imminent danger as per the conditions of Article 13 of Law 6331 is considered. Therefore, the terms of the right to refrain from working in our study are examined.
Finally, if the employee avoids medical examination without a justified reason, thereby endangering occupational health and safety, it is accepted that the contract of the worker can be terminated for a valid reason, following the Supreme Court’s decisions.
