Covid-19 Regulation on Remote Work – 03.2021

Regulation on Remote Work regulating the basic conditions of remote work entered into force upon its publication in the Official Gazette numbered 31419 and dated 10.03.2021. The important provisions of the Regulation are set out below.

Covid-19 Newsletter / No:8 / Date: 10.03.2021

1. Remote Work:

The concept of remote work was first introduced to the Turkish employment legislation in 2016 with the enactment of the Law Amending the Labor Code and Turkish Employment Agency, which amended various provisions of the Turkish Labor Code (“Labor Code”). Article 14(4) of the Labor Code defines the remote work as ”an employment relationship where the employee performs work at home or outside of the workplace by using technologicalcommunication tools within the work organization created by the employer”. Despite the stipulations in the Labor Code, the secondary legislation related to remote work has not been enacted until recently. The huge impact of Covid 19 pandemic on work environment has made the adoption of secondary regulation on remote work inevitable and accordingly, Regulation on Remote Work (“Regulation”) was enacted.

2. Content of the Regulation:

The Regulation deals with the following issues related to remote work:

• Form and content of remote working contract,
• Arrangement of the work environment
• Procurement and usage of the materials and work tools
• Payment of the production costs,
• Determination of the working hours,
• Communication,
• Data protection,
• Occupational health and safety measures,
• Works inconvenient for remote work,
• Transition to remote work.

3. Form and Content of the Remote Working Contract:

As per Article 5 of the Regulation which defines the form and content of contract, the remote working contract shall be concluded in writing. The contract shall contain job description, way of performance, the duration and place of the work, wages and issues related to the payment of wages, the work tools to be provided by the employer and liabilities related to the protection of those tools, communication of the employer with the employee and provisions related to the general and special working conditions

4. Arrangements of the Work Environment:

Article 6 of the Regulation provides that the necessary arrangements regarding the place for remote work shall be arranged before the commencement of work and the procedure and conditions of payment of the related expenses are agreed by the employee and employer jointly

5. Procurement and Usage of the Materials and Work Tools:

According to Article 7, unless otherwise agreed in the employment contract, the materials and work tools required for the remote work shall be procured by the employer. In the event that the work tools are procured by the employer, the employee must be supplied with the required work tools against a written confirmation of receipt listing the tools supplied along with their value, which must be signed by the employee. The principles of use, maintenance and repair conditions of the relevant materials and work tools have to be clearly and understandably notified to the employee.

6. Payment of the Production Costs:

According to Article 8, the issues related to the determination and payment of the necessary expenses directly associated with the production of goods or services arising from the fulfillment of the work shall be specified in the employment agreement

7. Determination of the Working Hours:

As per Article 9 of the Regulation, the time interval and duration of remote work shall be specified in the employment contract. It is also possible to change the working hours by the parties subject to the restrictions stipulated in the Labor Code. Overtime work shall only be done upon the written request of the employer, with the acceptance of the employee and in accordance with the Labor Code

8. Communication:

According to Article 10, the management and time interval of the communication in remote work shall be determined between by the remote employee and the employer

9. Communication:

According to Article 11, the employer shall inform the employee about the business rules and relevant legislation related to the protection and sharing of data concerning the workplace and work performed and take necessary measures for the protection of the relevant data. The employer shall specify the definition and scope of the data required to be protected within the framework of the agreement

10. Occupational Health and Safety Measures:

Article 12 of the Regulation reflects the Labor Code provisions on occupational health and safety. Accordingly, employers are responsible for informing its employees about this issue, providing the necessary training, providing health surveillance and taking necessary occupational safety measures regarding the equipment provided.

11. Works Inconvenient for Remote Work:

According to Article 13, the below works cannot be performed remotely

• works with hazardous chemicals and radioactive materials, processing these materials or working with the wastes of these substances
• works which involves processes that are at risk of exposure to biological factors.

12. Transition to Remote Work:

According to Article 14, the employment relation can directly be established as remote work agreement or the employment agreement of the employee may be converted to a remote work agreement. The Regulation provides that the employee may also request to work remotely. In such cases, the following conditions shall be applicable

• The request shall be made in writing,
• The request shall be considered by the employer in accordance with the procedure determined in the workplace,
• When considering the request, the employer takes into account the nature of business and qualification of the employee and their suitability for remote work or other criteria determined by the employer,
• The employer notifies its evaluation of the employee’s request within thirty (30) days.

The employee, who has started to work remotely, can request to work in the workplace. The employer shall consider the relevant request with priority.

In case remote work is to be applied in the entire or part of the workplace due to the compelling reasons specified in the legislation, the request or approval of the employee for transition to remote work shall not be required. Covid 19 pandemic falls under the compelling reasons for which the request or the consent of the employee for working remotely shall not be required.

This Newsletter aims to provide a brief and general overview of remote work, but does not intended to serve as a legal advice. Before taking any action or relying on the information given, addressees of this Newsletter should seek specific advice on the matters which concern them.