Employee’s Right to Occupational Health and Safety under Law No. 6331 in Remote Work — Part II
In the first part of our study, detailed explanations are provided on the legal regulations regarding remote work, the practical aspects of remote work, cases of work-related accidents occurring during remote work, and the legal basis for occupational health and safety in remote work. In the second part of our study, the employer’s obligations regarding occupational health and safety in remote work are examined with the aim of offering a detailed assessment.
1. EMPLOYER'S OBLIGATIONS REGARDING OCCUPATIONAL HEALTH AND SAFETY IN REMOTE WORK
Informing employees about occupational health and safety measures is one of their indispensable fundamental rights. [1] Article 16 of the Occupational Health and Safety Law regulates the employer’s obligation to provide information, and if a work accident or occupational disease occurs as a result of the employer’s failure to fulfill this obligation, this situation is taken into account in determining the employer’s fault. [2] The employer is responsible for providing employees with appropriate machinery, equipment, tools, and materials from an occupational health and safety perspective, considering the nature of the work; if necessary, not allowing an employee to start work without a health report; similarly, not assigning tasks without a vocational training certificate if required; and timely reporting work accidents and occupational diseases to the relevant authorities. [3]
The employer’s obligation to provide necessary training is another duty stipulated by law, as outlined under Article 17 of the Occupational Health and Safety Law, which addresses the training that must be provided to employees. The Regulation on the Procedures and Principles of Occupational Health and Safety Training also sets forth rules regarding the employer’s duty to provide training regardless of the type of the employee’s contract. This regulation stipulates that the training provided to employees can also be conducted remotely. Thus, employees working from home or teleworking from any location outside the workplace can receive the training provided by the employer remotely (Art. 12/7).
The employer’s obligation to ensure health surveillance is a broad responsibility encompassing numerous duties and is regulated under Article 15 of the Occupational Health and Safety Law. This obligation includes protecting and promoting employees’ health, conducting medical examinations and tests, informing employees about workplace risks and protective measures, reviewing general hygiene conditions in the work environment, and ensuring that all employees’ health records are kept confidential within the scope of personal rights. The penalty for the employer’s failure to fulfill this health surveillance obligation is stipulated under Article 26/1-f of the Occupational Health and Safety Law, whereby an administrative fine will be imposed separately for each employee affected by the employer’s non-compliance.
One of the most important considerations regarding the obligation to conduct health surveillance is the existence of a causal link between the employer’s fault, the occurrence of the illness or accident, and the health surveillance obligation. In a notable ruling by the Supreme Court, it was held that the employer’s fault could not be solely determined as 60% based only on the failure to obtain health reports and the failure to conduct annual health checks for employees. (Supreme Court, 21st Civil Chamber, 23.12.2009, Case No: 2008/16956, Decision No: 2009/21076.)
Another obligation of the employer under the Labor Law within the scope of remote work is to take occupational safety measures regarding the equipment provided. Taking these measures is not only an obligation for employers but also imposes a similar responsibility on employees to ensure occupational health and safety. Indeed, Article 8 titled “Rules of Use” of the Regulation on the Use of Personal Protective Equipment in Workplaces states that employees are obliged to properly use personal protective equipment in accordance with the training they have received under Law No. 6331 on Occupational Health and Safety and according to the employer’s instructions.
The employer’s ability to monitor whether the employee complies with occupational health and safety obligations is quite limited in the case of working from home. Moreover, the risk of violating rights such as the inviolability of the home and privacy must also be taken into account. Therefore, any inspection carried out by the employer must be conducted with caution, respecting these rights. Requests to access the home for inspection purposes may come from the employer or from state-appointed inspectors authorized to conduct audits and inspections. It is important that such requests comply with the principle of proportionality and are limited to the necessary place and duration required for the inspection. [4]
Another important and careful aspect of employer inspections within the scope of remote work is the monitoring of technological devices used for teleworking. It is crucial that the inspection authority granted to the employer does not allow interference with the employee’s personal life. Therefore, for the employer’s inspection—carried out for reasons such as security—to be considered lawful, employees must be informed in advance.
In jobs performed within the scope of remote work, employees are exposed to numerous risks. Especially in teleworking jobs, those working with computer screens can be adversely affected in many aspects of occupational health and safety. The Regulation on Health and Safety Measures in Work with Display Screen Equipment is significant in this regard. Under Article 5, the employer is obliged to include in the workplace risk assessment the risks arising from the use of display screen equipment in work centers, particularly those related to vision, physical problems, and mental stress. The employer must consider the effects of these risks, any additional effects they may cause, and the negative impacts that may arise from the combination of risks, and take all necessary health and safety measures to eliminate or minimize these adverse effects.
One of the important issues to be addressed in occupational health and safety in remote work is work accidents and occupational diseases. Although there is debate over whether incidents resulting in accidents during the work of remote employees should be classified as work accidents, it is essential to emphasize from the outset that not every accident occurring to employees working from home can be considered a work accident. However, any accident suffered by an employee due to the work performed and while the work is being carried out should be accepted as a work accident. Especially regarding whether accidents encountered by employees performing their work without remaining in a fixed location within the scope of teleworking qualify as work accidents, Article 13, paragraph (e) of Law No. 5510 on work accidents provides an adequate and necessary answer:
“It is an incident that occurs while insured employees are commuting to and from the workplace in a vehicle provided by the employer, which immediately or subsequently causes physical or mental disability to the insured person.”
The employer's obligation to ensure occupational health and safety is not limited to protecting workers against physical risks only. The employer is also responsible for taking measures against psychosocial risks and protecting employees from potential hazards arising from these risks. Especially in the context of rotational teleworking, employees become isolated by being distanced from the workplace and colleagues, thereby facing psychological risks. To alleviate the psychological burden on workers, necessary environments should be created to enable them to gather with colleagues and receive information related to the organization.
Beyond all these obligations of the employer, it should be noted that during the pandemic period, the transition of many workplaces from office-centered work to remote work caused employers to fail to coordinate the health and safety measures they are normally responsible for at the workplace with the work-from-home system. Due to the health risks of the pandemic and its social and economic consequences, serious anxiety arose among employees. In a study conducted by the Physical Therapy and Rehabilitation Department of Başkent University with 87 home-office workers during the COVID-19 isolation period, it was found that 86.2% of employees preferred a work desk, and 65.5% spent between 3 to 8 hours daily at this desk. Participants reported experiencing pain primarily in the lower back (50.6%), shoulders (44.8%), and knees (35.6%). The study concluded that working from home could increase the frequency of pain in the lower back, shoulders, and knees, and the severity of this pain could reach moderate to high levels. [5] In a case-control study conducted in Turkey during the pandemic, examining musculoskeletal pain, coronaphobia, and sleep quality among people who stayed at home and continued working over a 3-month period, it was reported that lower back pain was significantly higher in those who stayed at home compared to those who continued working, and the frequency of pain in the back, shoulders, and elbows was also higher among those staying at home. [6]
To effectively address the challenges faced by remote workers during the COVID-19 pandemic, many institutions and organizations have updated their existing documents to inform employees about their rights and responsibilities regarding health and safety. During the remote work period, it is necessary for managers to pay greater attention to the physical and mental health of employees, which calls for closer cooperation between corporate health and safety experts and management across workplaces and organizations. [7]
2. CONCLUSION
As in the traditional work setting, both the risks of occupational accidents and occupational diseases unfortunately continue to exist in remote work as well. Due to the employer’s supervision obligations stipulated in the Law and Regulation not being sufficiently active in remote work, the likelihood of such risky situations occurring is high.
Although employers’ supervision and control systems are limited in the context of remote work, their obligation to protect both the physical and mental health and safety of their employees continues in any case. The detailed regulation and examination of this matter by the legislator within the legal framework can be regarded as an important step toward preventing the shortcomings experienced in the current system.
REFERENCES
Çelik/Caniklioğlu/Canbolat, İş Hukuku Dersleri, Yenilenmiş 34th Edition, 2021, Beta Yayınevi.
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
Nihan Özünlü Pekyavaş, Investigation of the Pain and Disability Situation of the Individuals Working” Home-Office” At Home at the COVID-19 Isolation Process. International Journal of Disabilities Sports and Health Sciences.3(2):100-4.
Halûk Hâdi Sümer, İş Sağlığı ve Güvenliği Hukuku (İş Sağlığı ve Güvenliği), Revised 4th Edition, 2020, Seçkin Yayıncılık.
Şeyda Toprak Celenay, Yasemin Karaaslan, Oğuzhan Mete, Derya Özer Kaya, Coronaphobia, Musculoskeletal Pain, and Sleep Quality in Stay-at Home and Continued-Working Persons During the 3-month COVID-19 Pandemic Lockdown in Turkey. Chronobiology International. 2020:1-8.
Doç. Dr. Zehra Gök Metin, Prof. Dr. Ali Naci Yıldız, Türkiye İşçi Sendikaları Konfederasyonu İş Sağlığı ve Güvenliği Boyutu ile Uzaktan Çalışma, 2021, p.93.
In the first part of our study, detailed explanations are provided on the legal regulations regarding remote work, the practical aspects of remote work, cases of work-related accidents occurring during remote work, and the legal basis for occupational health and safety in remote work. In the second part of our study, the employer’s obligations regarding occupational health and safety in remote work are examined with the aim of offering a detailed assessment.
1. EMPLOYER'S OBLIGATIONS REGARDING OCCUPATIONAL HEALTH AND SAFETY IN REMOTE WORK
Informing employees about occupational health and safety measures is one of their indispensable fundamental rights. [1] Article 16 of the Occupational Health and Safety Law regulates the employer’s obligation to provide information, and if a work accident or occupational disease occurs as a result of the employer’s failure to fulfill this obligation, this situation is taken into account in determining the employer’s fault. [2] The employer is responsible for providing employees with appropriate machinery, equipment, tools, and materials from an occupational health and safety perspective, considering the nature of the work; if necessary, not allowing an employee to start work without a health report; similarly, not assigning tasks without a vocational training certificate if required; and timely reporting work accidents and occupational diseases to the relevant authorities. [3]
The employer’s obligation to provide necessary training is another duty stipulated by law, as outlined under Article 17 of the Occupational Health and Safety Law, which addresses the training that must be provided to employees. The Regulation on the Procedures and Principles of Occupational Health and Safety Training also sets forth rules regarding the employer’s duty to provide training regardless of the type of the employee’s contract. This regulation stipulates that the training provided to employees can also be conducted remotely. Thus, employees working from home or teleworking from any location outside the workplace can receive the training provided by the employer remotely (Art. 12/7).
The employer’s obligation to ensure health surveillance is a broad responsibility encompassing numerous duties and is regulated under Article 15 of the Occupational Health and Safety Law. This obligation includes protecting and promoting employees’ health, conducting medical examinations and tests, informing employees about workplace risks and protective measures, reviewing general hygiene conditions in the work environment, and ensuring that all employees’ health records are kept confidential within the scope of personal rights. The penalty for the employer’s failure to fulfill this health surveillance obligation is stipulated under Article 26/1-f of the Occupational Health and Safety Law, whereby an administrative fine will be imposed separately for each employee affected by the employer’s non-compliance.
One of the most important considerations regarding the obligation to conduct health surveillance is the existence of a causal link between the employer’s fault, the occurrence of the illness or accident, and the health surveillance obligation. In a notable ruling by the Supreme Court, it was held that the employer’s fault could not be solely determined as 60% based only on the failure to obtain health reports and the failure to conduct annual health checks for employees. (Supreme Court, 21st Civil Chamber, 23.12.2009, Case No: 2008/16956, Decision No: 2009/21076.)
Another obligation of the employer under the Labor Law within the scope of remote work is to take occupational safety measures regarding the equipment provided. Taking these measures is not only an obligation for employers but also imposes a similar responsibility on employees to ensure occupational health and safety. Indeed, Article 8 titled “Rules of Use” of the Regulation on the Use of Personal Protective Equipment in Workplaces states that employees are obliged to properly use personal protective equipment in accordance with the training they have received under Law No. 6331 on Occupational Health and Safety and according to the employer’s instructions.
The employer’s ability to monitor whether the employee complies with occupational health and safety obligations is quite limited in the case of working from home. Moreover, the risk of violating rights such as the inviolability of the home and privacy must also be taken into account. Therefore, any inspection carried out by the employer must be conducted with caution, respecting these rights. Requests to access the home for inspection purposes may come from the employer or from state-appointed inspectors authorized to conduct audits and inspections. It is important that such requests comply with the principle of proportionality and are limited to the necessary place and duration required for the inspection. [4]
Another important and careful aspect of employer inspections within the scope of remote work is the monitoring of technological devices used for teleworking. It is crucial that the inspection authority granted to the employer does not allow interference with the employee’s personal life. Therefore, for the employer’s inspection—carried out for reasons such as security—to be considered lawful, employees must be informed in advance.
In jobs performed within the scope of remote work, employees are exposed to numerous risks. Especially in teleworking jobs, those working with computer screens can be adversely affected in many aspects of occupational health and safety. The Regulation on Health and Safety Measures in Work with Display Screen Equipment is significant in this regard. Under Article 5, the employer is obliged to include in the workplace risk assessment the risks arising from the use of display screen equipment in work centers, particularly those related to vision, physical problems, and mental stress. The employer must consider the effects of these risks, any additional effects they may cause, and the negative impacts that may arise from the combination of risks, and take all necessary health and safety measures to eliminate or minimize these adverse effects.
One of the important issues to be addressed in occupational health and safety in remote work is work accidents and occupational diseases. Although there is debate over whether incidents resulting in accidents during the work of remote employees should be classified as work accidents, it is essential to emphasize from the outset that not every accident occurring to employees working from home can be considered a work accident. However, any accident suffered by an employee due to the work performed and while the work is being carried out should be accepted as a work accident. Especially regarding whether accidents encountered by employees performing their work without remaining in a fixed location within the scope of teleworking qualify as work accidents, Article 13, paragraph (e) of Law No. 5510 on work accidents provides an adequate and necessary answer:
“It is an incident that occurs while insured employees are commuting to and from the workplace in a vehicle provided by the employer, which immediately or subsequently causes physical or mental disability to the insured person.”
The employer's obligation to ensure occupational health and safety is not limited to protecting workers against physical risks only. The employer is also responsible for taking measures against psychosocial risks and protecting employees from potential hazards arising from these risks. Especially in the context of rotational teleworking, employees become isolated by being distanced from the workplace and colleagues, thereby facing psychological risks. To alleviate the psychological burden on workers, necessary environments should be created to enable them to gather with colleagues and receive information related to the organization.
Beyond all these obligations of the employer, it should be noted that during the pandemic period, the transition of many workplaces from office-centered work to remote work caused employers to fail to coordinate the health and safety measures they are normally responsible for at the workplace with the work-from-home system. Due to the health risks of the pandemic and its social and economic consequences, serious anxiety arose among employees. In a study conducted by the Physical Therapy and Rehabilitation Department of Başkent University with 87 home-office workers during the COVID-19 isolation period, it was found that 86.2% of employees preferred a work desk, and 65.5% spent between 3 to 8 hours daily at this desk. Participants reported experiencing pain primarily in the lower back (50.6%), shoulders (44.8%), and knees (35.6%). The study concluded that working from home could increase the frequency of pain in the lower back, shoulders, and knees, and the severity of this pain could reach moderate to high levels. [5] In a case-control study conducted in Turkey during the pandemic, examining musculoskeletal pain, coronaphobia, and sleep quality among people who stayed at home and continued working over a 3-month period, it was reported that lower back pain was significantly higher in those who stayed at home compared to those who continued working, and the frequency of pain in the back, shoulders, and elbows was also higher among those staying at home. [6]
To effectively address the challenges faced by remote workers during the COVID-19 pandemic, many institutions and organizations have updated their existing documents to inform employees about their rights and responsibilities regarding health and safety. During the remote work period, it is necessary for managers to pay greater attention to the physical and mental health of employees, which calls for closer cooperation between corporate health and safety experts and management across workplaces and organizations. [7]
2. CONCLUSION
As in the traditional work setting, both the risks of occupational accidents and occupational diseases unfortunately continue to exist in remote work as well. Due to the employer’s supervision obligations stipulated in the Law and Regulation not being sufficiently active in remote work, the likelihood of such risky situations occurring is high.
Although employers’ supervision and control systems are limited in the context of remote work, their obligation to protect both the physical and mental health and safety of their employees continues in any case. The detailed regulation and examination of this matter by the legislator within the legal framework can be regarded as an important step toward preventing the shortcomings experienced in the current system.
REFERENCES
Çelik/Caniklioğlu/Canbolat, İş Hukuku Dersleri, Yenilenmiş 34th Edition, 2021, Beta Yayınevi.
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
Nihan Özünlü Pekyavaş, Investigation of the Pain and Disability Situation of the Individuals Working” Home-Office” At Home at the COVID-19 Isolation Process. International Journal of Disabilities Sports and Health Sciences.3(2):100-4.
Halûk Hâdi Sümer, İş Sağlığı ve Güvenliği Hukuku (İş Sağlığı ve Güvenliği), Revised 4th Edition, 2020, Seçkin Yayıncılık.
Şeyda Toprak Celenay, Yasemin Karaaslan, Oğuzhan Mete, Derya Özer Kaya, Coronaphobia, Musculoskeletal Pain, and Sleep Quality in Stay-at Home and Continued-Working Persons During the 3-month COVID-19 Pandemic Lockdown in Turkey. Chronobiology International. 2020:1-8.
Doç. Dr. Zehra Gök Metin, Prof. Dr. Ali Naci Yıldız, Türkiye İşçi Sendikaları Konfederasyonu İş Sağlığı ve Güvenliği Boyutu ile Uzaktan Çalışma, 2021, p.93.
Turkish
