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As per Article 14 of the Labor Law No. 4587 (Law), remote work (employment) shall be defined as an employment relationship based on the principle that the employee fulfills his/her work performance within the scope of the work organization created by the employer at home or outside the workplace utilizing technological communication. Regulation on Remote Work (Regulation) which set outs the procedures and principles for remote work that may be preferred at these times of Covid-19 pandemic by introducing more detailed provisions on remote work in comparison to already existing Article 14 of the Law is published and entered into force in the Official Gazette numbered 31419 as of March 10, 2021.
The Regulation sets out the following issues on remote employment:
- Form and content of the agreements on remote work,
- Organization of the workplaces,
- Supply and the use of equipment and work tools,
- Coverage the production costs,
- Determination of working hours,
- Communication,
- Data protection,
- Occupational health and safety measures,
- Works where remote work is not possible,
- Change to remote work.
1. Form of the Agreement
According to Article 5 of the Regulation, it is stipulated that the employment agreements on remote work shall be executed in writing as outlined in the Law. Therefore, the contracts shall contain: (i) the definition, (ii) manner, (iii) total duration and place of work, (iv) conditions on the salary and its payment, (v) the equipment and tools provided by the employer, and safeguarding of such items, (vi) communication between the employer and the employee, general and private employment conditions.
2. Organization of the Workplaces
As per Article 6 of the Regulation, it is stipulated that the organization of the workplace where remote work is carried out shall be completed before the remote work commences and the conditions for meeting the costs arising from such arrangement shall be determined by the employee and the employer jointly.
3. Supply and the use of equipment and work tools
As per Article 7 of the Regulation, the equipment, and tools to be used during remote work shall be supplied by the employer unless otherwise agreed under the employment agreement. For the circumstances where the work tools or equipment are provided by the employer, it is stipulated under the Regulation that the list of such work tools or equipment, which indicates the costs of the said tools on the date of delivery to the employee, shall be provided by the employer to the employee in writing. A copy of this document (delivery minute) submitted and signed by the employee, shall be kept at the employee’s file by the employer. However, if the list of work tools or equipment is noted under the employment agreement or set as an annex to such agreement, no separate written minute for such delivery is required.
4. Coverage of the production costs
The issue of whether mandatory costs of the employee who works remotely are to be covered by the employer has been under discussion since the beginning of the Covid-19 pandemic. As per Article 8 of the Regulation, the details on determining and covering the required costs related to the production of goods or services arising from the performance of the work shall be set forth under the employment agreement.
5. Determination of working hours
As per Article 9 of the Regulation, it is stipulated that the period and hours of remote work shall be specified under the employment agreement. It should be noted that the parties have made it possible to make changes in working hours, provided that the limitations stipulated in the Law are adhered to. Overtime work shall only be the case according to the provisions of the Law upon the written request of the employer with the acceptance of the employee.
6. Communication
As per Article 10 of the Regulation, the method and period of communication regarding remote work will be determined by the employee and the employer.
7. Data Protection
As per Article 11 of the Regulation, it is stipulated that the definition and scope of the data required to be protected within the scope of remote work shall be determined under the employment agreement. However, the employer shall be obliged to inform the employee regarding the rules and relevant legislation on the protection and share of data regarding the workplace and the work, and to take the necessary measures for the protection of such data. The employee is required to comply with the rules as informed by the employer.
8. Occupational health and safety measures
Article 12 of the Regulation in parallel with the Law notes that the employer shall be obliged to inform the employee regarding occupational health and safety measures, to provide the necessary training, to monitor the health of the employee, and to take the necessary occupational safety measures regarding the equipment and tools provided to the employee subject to the requirements of the work.
9. Works where remote employment is not possible
As per Article 13 of the Regulation, the following works cannot be carried out through remote employment:
- Works related to hazardous chemicals and radioactive materials and their wastes,
- Works include processes at the risk of exposure to biological factors.
10. Switching to remote employment
As per Article 14 of the Regulation, the switch to remote employment shall take place through executing a new employment agreement by and between the employee and the employer or by amending the existing employment agreement to contain terms of remote work. Remote employment depends on the request or approval of the employee, except for force majeure cases specified in the legislation. If the employee wishes to work remotely, he/she may demand such in writing and this request shall be evaluated by the employer using criteria and the suitability of remote work based on qualifications of the work and the employee as defined by the employer. The employer shall be required to notify the employee of its decision based on such evaluation within thirty (30) days. The employee who demanded remote employment shall also have the right to demand to come back to the workplace for his/her performance. However, in case of remote employment applied as a whole or in parts of the workplace due to force majeure (defined in the legislation as the reasons where periodic circumstances which are not caused by the employer’s own management and administration that are predictable which cannot be disposed of, resulting in temporary reduction of working time or the suspension of the activity completely or partially, or periodic situations such as earthquake, fire, flood, landslide, epidemic, mobilization), the demand or approval of the employee will not be sought for to switch to remote employment.
Conclusion
The legislator has tried to regulate this area of changing business models and new trends somewhat forced upon the labor market due to the Covid-19 pandemic but seems likely to remain as a more significant part of the working culture from now on. There are still issues that need to be further detailed and reflected in various regulations. Actual tracking and reflection of overtime and accounting, expense recording and tax consequences of the increasing utility costs to be reflected to the employer by the employee such as internet connection or electricity may be examples of such issues that need to be addressed. Please find the full text of the Remote Work Regulation herein.