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Based on the principles of social security law and the decision of the 21st Civil Chamber of the Supreme Court of Appeals dated 15/04/2019, if there is a proper causal relation between the subsequent damage and the incident, the incident may be considered within the scope of a "work accident." Thus the employer can be held responsible if it is determined that the worker is infected with the disease under the conditions listed in Article 13 of Law No. 5510 (Coronavirus / COVID-19).
The coronavirus appearing in Wuhan, the capital of China's Hubei region on December 1, 2019, is a respiratory disease that transmits smoothly and continuously from person to person and threatens a large number of people all over the world. The World Health Organization (WHO) declared that the disease (Coronavirus / COVID-19) is a global epidemic (pandemic) on March 11, 2020, due to the rapid increase in virus incidents reported in various countries since the middle of January 2020.
The first diagnosed incident of Coronavirus / COVID-19 in Turkey is announced by the Minister of Health Fahrettin Koca as of March 11, 2020.
The effects of the virus are tried to be minimized by measures such as school holidays, compulsory travel bans, quarantines, homeworking practices, curfews for the people over the age of 65 and under the age of 20 in Turkey to limit the spread of the coronavirus epidemic and to combat the outbreak.
Despite the precautions taken, the doctors and healthcare professionals are more frequently diagnosed (COVID-19), and they lose their lives by succumbing to the disease as time progressed. The conditions became increasingly difficult for them because there is a lack of adequate personal protective equipment when they contact the suspicious or diagnosed patients despite the increase in the number of cases and the density of the patients exceeding the capacity.
Occupational accident in article 13 of the Social Security and General Health Insurance Law No. 5510 described as;
- When the insured is at work,
- Due to work carried out by the employer
- Due to work been carried out by the insured who operates it independently on its behalf and account,
- The times passed without the insured doing his primary job if the insurance holder working under an employer and sent to another place outside the workplace as staff,
- In the times allocated for breastfeeding to female insured to give milk to her child under the labor law
- As an event that occurs when the insured arrives at the place of work with a vehicle provided to the employer and makes the insured immediately or later physically or mentally disabled.
On March 30, 2020, the Turkish Medical Association (TMA) Central Council made a statement as "The diagnosis of the health worker (COVID-19) is a work accident or occupational disease" on the website www.ttb.org.tr.
In the statement made by the Turkish Medical Association (TMA) Central Council, if the healthcare workers diagnosed with COVID-19 as well as other occupational exposures, whether or not they are personnel of the public or private institution, they should notify the work accident or occupational illness. Splashing or smearing of the patient's cough, sneezing and other body fluids into someone's working in healthcare organizations (security officer, attendant, driver, secretary, etc.) respiratory tract, eye mucosa, or open wounds developing in connection with the COVID-19 is also should be notified as a "work accident. Although there is no determination about a sudden, growing event, it stated that notification should be made as "occupational disease" with the consideration of the close connection of the disease with the work done if the healthcare worker or the other workers work in healthcare organizations are diagnosed of COVID-19.
According to article 47 of the Social Security and General Health Insurance Law No. 5510, titled "Invalidity of the official."
The rightful heirs may be entitled to the "invalidity pension," in the death incident of a healthcare professional who works in both public institutions and university teaching hospitals are diagnosed with COVID-19 while doing their duties or due to the causes and effects of their obligations provided that they are decided to be "duty-disabled" because they lost their lives due to coronavirus or face with a permanent health problem due to the coronavirus.
If the private sector employees, whose work activities are continuing, diagnosed with the COVID-19, will the disease be considered as a "work accident"? Should it be reported to the Social Security Institution (SSI) as a "work accident"?
Within the scope of preventive measures to combat the epidemic in workplaces in the private sector, workplace activities are either completely suspended or restricted by many employers, or a home / distance working model was adopted who have a technological infrastructure. Workplace activities continue in some workplaces where the remote working model cannot applied due to the nature of the work. If private-sector employees whose work activities continue diagnosed with COVID-19, the decision of the 21st Civil Chamber of the Supreme Court of Appeals dated 15/04/2019 merits no. 2018/5018 - decree no. 2019/2931 is a precedent.
As is known, The World Health Organization (WHO) gave a pandemic alarm on June 11, 2009, with the rapid spread of the swine flu (H1N1) epidemic all over the world that first appeared among people in Mexico on March 2009. Then, pandemic swine flu (H1N1) has spread rapidly in the northern hemisphere in November-December 2009, when the winter season takes place.
With the decision of the 21st Civil Chamber of the Supreme Court dated 15/04/2019, the death incident of the truck driver that occurred in December 2009 who was sent to Ukraine by the employer in November 2009, due to the swine flu (H1N1) virus, which appeared to infected during the expedition accepted as a "work accident." The Supreme Court broadly interpreted the definition of the occupational accident.
There is a possibility that pandemic (Coronavirus / COVID-19) disease can be transmitted to the employee while the work was performing by the employee and carried out by the employer. As well as there is a possibility of transmission of the pandemic because the employee works in a different environment. Based on the principles of social security law and the decision of the 21st Civil Chamber of the Supreme Court of Appeals dated 15/04/2019; if it is determined that the worker is infected with the disease under conditions of Article 13 of Law No. 5510 (Coronavirus / COVID-19) provided that there is a proper causal relation between the subsequent damage and the incident, the incident can be accepted within the scope of "work accident," thus the employer can be held responsible. In this case, the disease of the worker diagnosed (COVID-19) will need to be reported by the employer as a "work accident."
As a result, in case it is determined that the worker infected with the disease (Coronavirus / COVID-19) under the conditions of the provisions of Article 13 of the Law No. 5510, the disease will be accepted as a "work accident" thus the employer's responsibility will arise. In the event of the death of the worker, the rightful heirs will have the right to demand "work accident compensation.”
Attorney at Law Ebru Süzer Güneş / Consultant – Mediator
Construed - Tuba Kızılkaya / Lawyer
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