Employee's Right to Occupational Health and Safety in Remote Work under Labor Law within the Framework of Law No. 6331 - Part I
From a labor law perspective, remote work, in its general sense, has long been a recognized form of employment. However, in recent years, it has gained widespread popularity both globally and in our country, coming into sharper focus during the pandemic. The coronavirus outbreak, while posing a threat to public health, has also adversely impacted the economy and working life worldwide, including in our country. Consequently, during this period, "Remote Work," commonly referred to as "Home Office" or "Working from Home," became one of the most frequently utilized methods of employment.
Although the conditions for remote work are regulated under Article 14 of the Labor Law No. 4857, the continued pandemic and the increasing need for remote work led to the enactment of the Remote Work Regulation, which was published in the Official Gazette on March 10, 2021, and entered into force.
With these developments, the question of how to ensure occupational health and safety for remote workers and how to define the boundaries of the employer’s responsibilities has gained significance. In this study, we will discuss the obligations of both employers and employees within the scope of occupational health and safety in remote work systems, as well as the occupational health and safety measures to be taken in remote working environments. The study, prepared in two parts, will cover in its first section the legal regulations on remote work, details regarding the implementation of remote work, instances of work accidents occurring during remote work, and the legal basis of occupational health and safety in remote work.
II. LEGAL REGULATIONS
A. SCOPE
It is noteworthy that both labor law sources and collective bargaining agreements contain limited provisions on remote work, while the regulations found in international legal documents and national legal sources are as follows:
The ILO Convention No. 177 and Recommendation No. 184 concerning homework were adopted at the International Labor Conference on June 20, 1996. Both documents represent the first international instruments to include fundamental principles regarding the feasibility of remote work, the opportunity for home-based work, and types of work that can be performed outside the workplace.[1]
The European Framework Agreement is the only international document specifically addressing telework. This agreement is significant because it codifies the principles and rules agreed upon by social partners in Europe and serves as a basis for collective labor agreements on telework in EU member states.
Although our country is not a party to either of the two conventions, these agreements have been taken into consideration in the regulations and developments made. Prior to the amendments in Labor Law No. 4857, this issue was addressed under the heading of home service contracts (Turkish Code of Obligations, Article 461) in the Turkish Code of Obligations No. 6098.
With the amendment made to the Labor Law in 2016, the concept of “remote work” was added to the Labor Law. The related regulation is included in Article 14, Paragraph 4, and is as follows:
“Remote work is an employment relationship established in writing, based on the principle that the employee performs the work within the work organization created by the employer either at home or outside the workplace through technological communication tools.”
The Remote Work Regulation, which outlines the implementation details applicable to public and private workplaces employing workers subject to the Labor Law, was published in the Official Gazette dated 10/3/2021 and numbered 31419, and entered into force. Thanks to this regulation, the remote work system, which has become more widespread especially with the increase in COVID-19 cases, has been given a more detailed legal framework.
Remote work refers to “an employment relationship established in writing, based on the principle that the employee performs work either at home or outside the workplace using technological communication tools, within the work organization created by the employer.” According to this definition, a remote worker can be considered “an employee who performs all or part of their work remotely.”
In terms of the Labor Law, remote work encompasses both traditional work-from-home arrangements without the use of technological devices and telework based on the use of technological devices.
B. IMPLEMENTATION OF REMOTE WORK
Article 14/5 of the Labor Law states that the content of remote work agreements shall include the definition of the work, the manner of its performance, the duration and location of the work, matters related to salary and payment, the equipment provided by the employer and the obligations regarding their protection, the employer’s communication with the employee, as well as provisions related to general and specific working conditions.
Especially in cases of force majeure such as an epidemic, work can be temporarily carried out from home. In this situation, to protect the rights of employers and employees, all measures related to remote work—primarily occupational health and safety precautions—must be applied to work-from-home arrangements, even if only for a temporary period.
1. Arrangement of the workspace
In the traditional work arrangement, the workspace—that is, the place where the work is performed—is under the control and management of the employer. Within this scope, the employer is obliged to take necessary occupational safety measures in the workspace, maintain the order of the workspace, and bear its costs. However, in remote work, unlike traditional work, the place where the employee performs their work is their own home. At this point, Article 6 of the Regulation comes into play, which stipulates that arrangements related to the workspace must be completed before the work begins. Specifically, whether the employee's working conditions are suitable for remote work, the need for internet, electricity expenses, and comfort-related needs such as desk and chair should be identified, and the costs related to these should be resolved through mutual negotiations between the employee and employer.
2. Provision and use of materials and work tools
According to Article 7 of the Regulation, unless otherwise agreed in the employment contract, it is essential that the employer provides the materials and work tools necessary for the production of goods and services to the remote worker. The principles of use, as well as the conditions for maintenance and repair of these materials and tools, must be clearly and understandably communicated to the remote worker. Additionally, if the work tools are supplied by the employer, a written list detailing the values of the tools as of the date they are delivered must be provided to the employee by the employer.
3. Covering production costs
Article 8 of the Regulation states that matters related to the identification and reimbursement of mandatory expenses directly associated with the production of goods/services arising from the performance of the work shall be specified in the employment contract.
4. Determination of working hours
A remote worker, like other employees, has working hours, and any work performed outside these hours will be considered overtime or extra work. Indeed, Article 9 of the Regulation mandates that the working hours of the employee engaged in remote work must be specified in the employment contract.
5. Protection of personal data
Article 11 of the Regulation stipulates that the employer is obliged to inform the remote worker about the company rules and relevant legislation regarding the protection and sharing of data related to the workplace and the work performed, and to take the necessary measures to safeguard such data.
6. Taking measures related to occupational health and safety
The fact that the work is performed remotely does not alter the employer’s responsibility regarding workplace health and safety measures. The employer is obligated to inform the employee about occupational health and safety measures, provide necessary training, ensure health surveillance, and take the necessary safety precautions regarding the equipment supplied, considering the nature of the work performed under the remote working arrangement.
From the employer's perspective, the most critical aspect of remote work is occupational health and safety, and it is beneficial to examine this issue in detail.
C) WORK ACCIDENT IN REMOTE WORK
Article 13/1 of the Social Insurance and General Health Insurance Law No. 5510 defines a work accident as follows:
a) When the insured is present at the workplace,
b) (Amended: 17/4/2008-5754/8 Art.) If the insured is working independently on their own behalf and account due to work carried out by the employer,
c) During the time spent without performing the primary job when the insured employee, who works under an employer, is sent to another location outside the workplace for duty,
d) (Amended: 17/4/2008-5754/8 Art.) During the breastfeeding time granted by labor legislation to a female insured within the scope of Article 4, Paragraph 1 (a) of this Law,
e) During the commute to and from the workplace with a vehicle provided by the employer, any incident that immediately or subsequently renders the insured physically or mentally disabled,
Additionally, Article 3 (g) of the Occupational Health and Safety Law No. 6331 defines a work accident as “an incident occurring at the workplace or due to the execution of work that results in death or causes physical or mental impairment to the integrity of the body.”
In the traditional work arrangement, accidents occurring at the employer’s workplace are generally considered work accidents. However, for an incident to be classified as a work accident, it does not necessarily have to take place at the workplace; accidents occurring outside the workplace while performing work (including the area covered by the employer’s organization and the space encompassed by that organization) are also regarded as work accidents. Accordingly, if the work is being carried out from home, any accidents occurring during this period will also be considered within the scope of work accidents.
D) LEGAL BASIS OF OCCUPATIONAL HEALTH AND SAFETY IN THE REMOTE WORKING SYSTEM
With the amendment made to the Labor Law No. 4857 on May 6, 2016, additional paragraphs were added to Article 14 within the scope of Law No. 6516. According to the content of Article 14/6:
"The employer is obliged to inform the employee about occupational health and safety measures, provide necessary training, ensure health surveillance, and take necessary occupational safety measures related to the equipment provided, considering the nature of the work performed by the employee within the framework of the remote working relationship."
In this context, it is emphasized that the employer must take necessary occupational health and safety precautions based on the nature of the work.
With the regulation stating that "The employer is obliged to inform the remote worker about occupational health and safety measures, provide the necessary training, ensure health surveillance, and take necessary occupational safety measures regarding the equipment provided, considering the nature of the work performed," the importance of the issue has once again been emphasized.
Article 417, paragraph 2 of the Turkish Code of Obligations states:
"The employer is obliged to take all necessary measures to ensure occupational health and safety in the workplace, to keep equipment and tools complete; employees are also obliged to comply with all measures taken regarding occupational health and safety."
Thus, the issue of occupational health and safety is addressed within the scope of service contracts.
Particularly, the Occupational Health and Safety Law No. 6331 contains comprehensive and significant regulations on the matter. Pursuant to Article 4 of the Law, the employer is required to:
a) Take all necessary measures, including the prevention of occupational risks, the provision of training and information, the organization of safety measures, the supply of necessary equipment, the adaptation of health and safety measures to changing conditions, and efforts to improve the existing situation. b) Monitor, supervise, and ensure compliance with occupational health and safety measures implemented in the workplace, and address any non-compliance. c) Conduct or commission a risk assessment. d) Take into account the employee’s suitability for the job in terms of health and safety when assigning tasks. e) Implement measures to prevent employees who have not received adequate information and instructions from entering areas with vital and specific hazards.
From the perspective of international sources, according to Article 7 of the International Labour Organization’s Convention No. 177 on Home Work:
“National laws and regulations concerning occupational health and safety shall apply to home work, taking into account the specific characteristics of home work, and shall set conditions under which certain types of work and the use of certain materials may be prohibited for health and safety reasons.”
Furthermore, Article 20 of the ILO’s Recommendation No. 184 concerning Home Work provides a general regulation on occupational health and safety. Accordingly:
“Employers shall inform home workers about the known or foreseeable hazards related to the work they undertake and the precautions to be taken, provide necessary training; ensure the safety and maintenance of machines, tools, and other equipment supplied; and provide home workers with all necessary personal protective equipment free of charge.”
Article 8 titled “Health and Safety” of the European Framework Agreement on Telework states:
“The employer is responsible for protecting the occupational health and safety of the teleworker in accordance with Directive 89/391, related directives, national laws, and collective agreements. The employer informs the employee about the workplace health and safety policies, especially regarding the requirements of visual display screens. The teleworker correctly applies these safety practices.
To ensure the correct implementation of these practices, the employer, workplace representatives, or other authorities may visit the telework location without exceeding the limits of national laws and collective agreements.
If the teleworker works from their own home, prior notification must be given, and the employee’s consent must be obtained.
The teleworker may also request an inspection visit.” [2]
The provision containing this regulation highlights the importance of occupational health and safety in remote work.
III. CONCLUSION
The remote work system, which rapidly developed and became widespread especially during the Covid-19 pandemic period, has gradually become feasible for many employers over time. Thanks to the simultaneous advancement of internet networks alongside technology, distance has ceased to be an obstacle, and employers have been able to work with experts even if they are located in different cities or countries.
The employer’s occupational health and safety obligations within the scope of remote work are stipulated in Article 14 of the Labor Law, which states that the employer is responsible for informing, providing necessary training, ensuring health surveillance, and taking the required occupational safety measures related to the equipment provided. The Regulation on Remote Work also addresses the employer’s occupational health and safety obligations; however, the provisions of the Regulation have not become significantly more explanatory or illuminating than the expressions contained in the Law. In this context, it is evident that there is still a need for regulations that will enhance the effectiveness of the employer-employee relationship.
In the second part of our series, we will examine the employer’s obligations regarding occupational health and safety in remote work and provide a detailed informational article.
REFERENCES
Gonca Aydınöz, “İş Hukukunda Tele (Uzaktan) Çalışma”, (Doktora), 2014, Ankara University, Social Sciences Institute.
Çelik/ Caniklioğlu/Canbolat, İş Hukuku Dersleri, Revised 34th Edition, 2021, Beta Yayınevi. Serdar Çoker, Türk İş Hukuku Mevzuatında Uzaktan Çalışma, 2020
Dilek Dulay Yangın, Türk İş Hukukunda Evde Çalışma, 2016, Turhan Kitabevi.
Lütfi İnciroğlu , Çalışma Hayatında Esnek Çalışma Uygulamaları, 2nd Edition, 2020, Legal Kitapevi
Erdem Özdemir, İş Sağlığı ve Güvenliği Hukuku Dersleri, 2020, Vedat Kitapçılık
From a labor law perspective, remote work, in its general sense, has long been a recognized form of employment. However, in recent years, it has gained widespread popularity both globally and in our country, coming into sharper focus during the pandemic. The coronavirus outbreak, while posing a threat to public health, has also adversely impacted the economy and working life worldwide, including in our country. Consequently, during this period, "Remote Work," commonly referred to as "Home Office" or "Working from Home," became one of the most frequently utilized methods of employment.
Although the conditions for remote work are regulated under Article 14 of the Labor Law No. 4857, the continued pandemic and the increasing need for remote work led to the enactment of the Remote Work Regulation, which was published in the Official Gazette on March 10, 2021, and entered into force.
With these developments, the question of how to ensure occupational health and safety for remote workers and how to define the boundaries of the employer’s responsibilities has gained significance. In this study, we will discuss the obligations of both employers and employees within the scope of occupational health and safety in remote work systems, as well as the occupational health and safety measures to be taken in remote working environments. The study, prepared in two parts, will cover in its first section the legal regulations on remote work, details regarding the implementation of remote work, instances of work accidents occurring during remote work, and the legal basis of occupational health and safety in remote work.
II. LEGAL REGULATIONS
A. SCOPE
It is noteworthy that both labor law sources and collective bargaining agreements contain limited provisions on remote work, while the regulations found in international legal documents and national legal sources are as follows:
The ILO Convention No. 177 and Recommendation No. 184 concerning homework were adopted at the International Labor Conference on June 20, 1996. Both documents represent the first international instruments to include fundamental principles regarding the feasibility of remote work, the opportunity for home-based work, and types of work that can be performed outside the workplace.[1]
The European Framework Agreement is the only international document specifically addressing telework. This agreement is significant because it codifies the principles and rules agreed upon by social partners in Europe and serves as a basis for collective labor agreements on telework in EU member states.
Although our country is not a party to either of the two conventions, these agreements have been taken into consideration in the regulations and developments made. Prior to the amendments in Labor Law No. 4857, this issue was addressed under the heading of home service contracts (Turkish Code of Obligations, Article 461) in the Turkish Code of Obligations No. 6098.
With the amendment made to the Labor Law in 2016, the concept of “remote work” was added to the Labor Law. The related regulation is included in Article 14, Paragraph 4, and is as follows:
“Remote work is an employment relationship established in writing, based on the principle that the employee performs the work within the work organization created by the employer either at home or outside the workplace through technological communication tools.”
The Remote Work Regulation, which outlines the implementation details applicable to public and private workplaces employing workers subject to the Labor Law, was published in the Official Gazette dated 10/3/2021 and numbered 31419, and entered into force. Thanks to this regulation, the remote work system, which has become more widespread especially with the increase in COVID-19 cases, has been given a more detailed legal framework.
Remote work refers to “an employment relationship established in writing, based on the principle that the employee performs work either at home or outside the workplace using technological communication tools, within the work organization created by the employer.” According to this definition, a remote worker can be considered “an employee who performs all or part of their work remotely.”
In terms of the Labor Law, remote work encompasses both traditional work-from-home arrangements without the use of technological devices and telework based on the use of technological devices.
B. IMPLEMENTATION OF REMOTE WORK
Article 14/5 of the Labor Law states that the content of remote work agreements shall include the definition of the work, the manner of its performance, the duration and location of the work, matters related to salary and payment, the equipment provided by the employer and the obligations regarding their protection, the employer’s communication with the employee, as well as provisions related to general and specific working conditions.
Especially in cases of force majeure such as an epidemic, work can be temporarily carried out from home. In this situation, to protect the rights of employers and employees, all measures related to remote work—primarily occupational health and safety precautions—must be applied to work-from-home arrangements, even if only for a temporary period.
1. Arrangement of the workspace
In the traditional work arrangement, the workspace—that is, the place where the work is performed—is under the control and management of the employer. Within this scope, the employer is obliged to take necessary occupational safety measures in the workspace, maintain the order of the workspace, and bear its costs. However, in remote work, unlike traditional work, the place where the employee performs their work is their own home. At this point, Article 6 of the Regulation comes into play, which stipulates that arrangements related to the workspace must be completed before the work begins. Specifically, whether the employee's working conditions are suitable for remote work, the need for internet, electricity expenses, and comfort-related needs such as desk and chair should be identified, and the costs related to these should be resolved through mutual negotiations between the employee and employer.
2. Provision and use of materials and work tools
According to Article 7 of the Regulation, unless otherwise agreed in the employment contract, it is essential that the employer provides the materials and work tools necessary for the production of goods and services to the remote worker. The principles of use, as well as the conditions for maintenance and repair of these materials and tools, must be clearly and understandably communicated to the remote worker. Additionally, if the work tools are supplied by the employer, a written list detailing the values of the tools as of the date they are delivered must be provided to the employee by the employer.
3. Covering production costs
Article 8 of the Regulation states that matters related to the identification and reimbursement of mandatory expenses directly associated with the production of goods/services arising from the performance of the work shall be specified in the employment contract.
4. Determination of working hours
A remote worker, like other employees, has working hours, and any work performed outside these hours will be considered overtime or extra work. Indeed, Article 9 of the Regulation mandates that the working hours of the employee engaged in remote work must be specified in the employment contract.
5. Protection of personal data
Article 11 of the Regulation stipulates that the employer is obliged to inform the remote worker about the company rules and relevant legislation regarding the protection and sharing of data related to the workplace and the work performed, and to take the necessary measures to safeguard such data.
6. Taking measures related to occupational health and safety
The fact that the work is performed remotely does not alter the employer’s responsibility regarding workplace health and safety measures. The employer is obligated to inform the employee about occupational health and safety measures, provide necessary training, ensure health surveillance, and take the necessary safety precautions regarding the equipment supplied, considering the nature of the work performed under the remote working arrangement.
From the employer's perspective, the most critical aspect of remote work is occupational health and safety, and it is beneficial to examine this issue in detail.
C) WORK ACCIDENT IN REMOTE WORK
Article 13/1 of the Social Insurance and General Health Insurance Law No. 5510 defines a work accident as follows:
a) When the insured is present at the workplace,
b) (Amended: 17/4/2008-5754/8 Art.) If the insured is working independently on their own behalf and account due to work carried out by the employer,
c) During the time spent without performing the primary job when the insured employee, who works under an employer, is sent to another location outside the workplace for duty,
d) (Amended: 17/4/2008-5754/8 Art.) During the breastfeeding time granted by labor legislation to a female insured within the scope of Article 4, Paragraph 1 (a) of this Law,
e) During the commute to and from the workplace with a vehicle provided by the employer, any incident that immediately or subsequently renders the insured physically or mentally disabled,
Additionally, Article 3 (g) of the Occupational Health and Safety Law No. 6331 defines a work accident as “an incident occurring at the workplace or due to the execution of work that results in death or causes physical or mental impairment to the integrity of the body.”
In the traditional work arrangement, accidents occurring at the employer’s workplace are generally considered work accidents. However, for an incident to be classified as a work accident, it does not necessarily have to take place at the workplace; accidents occurring outside the workplace while performing work (including the area covered by the employer’s organization and the space encompassed by that organization) are also regarded as work accidents. Accordingly, if the work is being carried out from home, any accidents occurring during this period will also be considered within the scope of work accidents.
D) LEGAL BASIS OF OCCUPATIONAL HEALTH AND SAFETY IN THE REMOTE WORKING SYSTEM
With the amendment made to the Labor Law No. 4857 on May 6, 2016, additional paragraphs were added to Article 14 within the scope of Law No. 6516. According to the content of Article 14/6:
"The employer is obliged to inform the employee about occupational health and safety measures, provide necessary training, ensure health surveillance, and take necessary occupational safety measures related to the equipment provided, considering the nature of the work performed by the employee within the framework of the remote working relationship."
In this context, it is emphasized that the employer must take necessary occupational health and safety precautions based on the nature of the work.
With the regulation stating that "The employer is obliged to inform the remote worker about occupational health and safety measures, provide the necessary training, ensure health surveillance, and take necessary occupational safety measures regarding the equipment provided, considering the nature of the work performed," the importance of the issue has once again been emphasized.
Article 417, paragraph 2 of the Turkish Code of Obligations states:
"The employer is obliged to take all necessary measures to ensure occupational health and safety in the workplace, to keep equipment and tools complete; employees are also obliged to comply with all measures taken regarding occupational health and safety."
Thus, the issue of occupational health and safety is addressed within the scope of service contracts.
Particularly, the Occupational Health and Safety Law No. 6331 contains comprehensive and significant regulations on the matter. Pursuant to Article 4 of the Law, the employer is required to:
a) Take all necessary measures, including the prevention of occupational risks, the provision of training and information, the organization of safety measures, the supply of necessary equipment, the adaptation of health and safety measures to changing conditions, and efforts to improve the existing situation. b) Monitor, supervise, and ensure compliance with occupational health and safety measures implemented in the workplace, and address any non-compliance. c) Conduct or commission a risk assessment. d) Take into account the employee’s suitability for the job in terms of health and safety when assigning tasks. e) Implement measures to prevent employees who have not received adequate information and instructions from entering areas with vital and specific hazards.
From the perspective of international sources, according to Article 7 of the International Labour Organization’s Convention No. 177 on Home Work:
“National laws and regulations concerning occupational health and safety shall apply to home work, taking into account the specific characteristics of home work, and shall set conditions under which certain types of work and the use of certain materials may be prohibited for health and safety reasons.”
Furthermore, Article 20 of the ILO’s Recommendation No. 184 concerning Home Work provides a general regulation on occupational health and safety. Accordingly:
“Employers shall inform home workers about the known or foreseeable hazards related to the work they undertake and the precautions to be taken, provide necessary training; ensure the safety and maintenance of machines, tools, and other equipment supplied; and provide home workers with all necessary personal protective equipment free of charge.”
Article 8 titled “Health and Safety” of the European Framework Agreement on Telework states:
“The employer is responsible for protecting the occupational health and safety of the teleworker in accordance with Directive 89/391, related directives, national laws, and collective agreements. The employer informs the employee about the workplace health and safety policies, especially regarding the requirements of visual display screens. The teleworker correctly applies these safety practices.
To ensure the correct implementation of these practices, the employer, workplace representatives, or other authorities may visit the telework location without exceeding the limits of national laws and collective agreements.
If the teleworker works from their own home, prior notification must be given, and the employee’s consent must be obtained.
The teleworker may also request an inspection visit.” [2]
The provision containing this regulation highlights the importance of occupational health and safety in remote work.
III. CONCLUSION
The remote work system, which rapidly developed and became widespread especially during the Covid-19 pandemic period, has gradually become feasible for many employers over time. Thanks to the simultaneous advancement of internet networks alongside technology, distance has ceased to be an obstacle, and employers have been able to work with experts even if they are located in different cities or countries.
The employer’s occupational health and safety obligations within the scope of remote work are stipulated in Article 14 of the Labor Law, which states that the employer is responsible for informing, providing necessary training, ensuring health surveillance, and taking the required occupational safety measures related to the equipment provided. The Regulation on Remote Work also addresses the employer’s occupational health and safety obligations; however, the provisions of the Regulation have not become significantly more explanatory or illuminating than the expressions contained in the Law. In this context, it is evident that there is still a need for regulations that will enhance the effectiveness of the employer-employee relationship.
In the second part of our series, we will examine the employer’s obligations regarding occupational health and safety in remote work and provide a detailed informational article.
REFERENCES
Gonca Aydınöz, “İş Hukukunda Tele (Uzaktan) Çalışma”, (Doktora), 2014, Ankara University, Social Sciences Institute.
Çelik/ Caniklioğlu/Canbolat, İş Hukuku Dersleri, Revised 34th Edition, 2021, Beta Yayınevi. Serdar Çoker, Türk İş Hukuku Mevzuatında Uzaktan Çalışma, 2020
Turkish
