Evaluation of COVID-19 in Terms of Work Accident and Occupational Disease
Seda Arslan DurmuşCoronavirus 2019 (COVID-19) emerged in Wuhan, China and spread rapidly around the world, causing an epidemic that has deeply affected working life and resulted in many new regulations regarding working life. Occupational health and safety law is one of the areas that showed the most impact on employee-employer relationships during the pandemic period. Employers are obliged to take every precaution to prevent the spread of COVID-19 in the workplace. The employer is responsible if he acts against his obligations. At this point, COVID-19 is evaluated in terms of work accident or occupational disease. Whether COVID-19 can be counted as a work accident or occupational disease is among the most controversial issues in teaching and practice. When a physical or mental injury resulting from the COVID-19 virus occurs, conditions can be considered a work accident. It is also possible to characterize COVID-19 as an occupational disease. In terms of health workers, it is useful to separate the subject by examining it. In our study, after briefly focusing on the concepts of work accident and occupational disease, we will explain why COVID-19 should be considered as a work accident.
COVID-19’un İş Kazası ve Meslek Hastalığı Bakımından Değerlendirilmesi
Seda Arslan DurmuşCOVID-19 hastalığı (Korona virüs), Çin’in Wuhan kentinde ortaya çıkmış ve tüm dünyada hızla yayılmıştır. Salgın, çalışma yaşamını derinden etkilemiş ve bu sebeple çalışma hayatına dair birçok yeni düzenleme yapılmıştır. Pandemi döneminde iş sağlığı ve güvenliği hukuku ise işçi-işveren ilişkisine dair en çok etkisini gösteren alanlardan biri olmuştur. İşveren, COVID-19 hastalığının işyerinde yayılmasını engellemek için alması gereken her türlü önlemi almakla yükümlüdür. İşverenin yükümlülüklerine aykırı hareket etmesi, şüphesiz ki sorumluluğunu gündeme getirecektir. Bu noktada COVID-19 hastalığının iş kazası veya meslek hastalığı bakımından değerlendirilmesi söz konusu olmaktadır. COVID-19’un iş kazası veya meslek hastalığı sayılıp sayılmayacağı hususu, öğretide ve uygulamada tartışmalı konuların başında gelmektedir. COVID-19 virüsüne bağlı bedensel veya ruhsal bir zarar ortaya çıktığında, koşullar varsa iş kazası olarak nitelendirilebilecektir. Bunun gibi COVID-19 hastalığının meslek hastalığı olarak nitelendirilmesi de mümkündür. Sağlık çalışanları bakımından ise konuyu ayırarak incelemekte fayda vardır. Çalışmamızda iş kazası ve meslek hastalığı kavramları üzerinde kısaca durulduktan sonra COVID-19’un neden iş kazası sayılması gerektiği açıklanacaktır.
Coronavirus 2019 (COVID-19), which appeared in Wuhan City in the Hubei province of China in December 2019, began to show its effect all over the world in time and has affected many countries globally. COVID-19 first emerged in Turkey on March 11, 2020. During the extraordinary period declared a pandemic, many problems occurred in the field of occupational health and safety. It is essential that the workers are employed in a healthy and safe environment, and employers are obliged to take all precautions on this matter. The main legal problem in the field of occupational health and safety is whether COVID-19 will be considered as a work accident and occupational disease. COVID-19 can be described as a work accident if it occurs within the framework of the conditions written in Law No. 5510.
If an indivudal is infected with the virus while at work, it must be considered as a work accident. It is also within the scope of infection of the worker while carrying out the orders and instructions given by the employer. It is also considered a work accident when the employee contracts COVID-19 from a customer, such as when he goes to repair a faucet in the home of a customer, owing to the work being carried out by the employer. When the worker is sent to another place outside the office as a worker, the situation of being infected with COVID-19 while using public transport will also be counted as a work accident. Even when there is no vehicle provided to the employee, the employer’s authority continues. Likewise, if COVID-19 exposure occurs while using public transportation in the milk permit allocated to give milk to the child of the breastfeeding female insured while going to the workplace, a work accident may come up. If transmisstion occurs in a service vehicle provided by the employer, this will also be considered as a work accident. It is possible to replicate these examples, but the important thing is to determine when and how COVID-19 was transmitted to the worker. Instead of counting every COVID-19 occurrance as a work accident, events should be counted when they have a causality link.
Considering the 2- to 14-day incubation period of COVID-19, the virus must be proven to be infected by one of the elements as written in Article 13 of Law No. 5510. To consider it as a work accident, the worker must experience physical or mental harm. The coronavirus may have cause major damage to the lung of the insured, or the insured may have died as a result of his illness. Being infected with the virus may have created a mental disability in the insured. These examples indicate that the insured experienced bodily or mental harm as a result of being infected with the virus.
The concepts of counting a work accident in terms of social security law and counting a work accident in terms of work law are different. According to Law No. 5510, in the case of a work accident, insurance benefits are provided by the Social Security Institution. In order to provide insurance benefits, the employer is not required to be at fault. To put it more clearly, qualifying an incident as a work accident may not always result in the employer’s legal or criminal liability. For the employer to have legal responsibility from a work accident, an appropriate causal link must be established between the accident and the work performed. The employer will be responsible for not complying with the necessary occupational health and safety obligations. Therefore, if the worker experiences damage owing to COVID-19, the employer will need to be proven defective to be held responsible. The inevitability principle should also be taken into account in determining the responsibility of the worker and the employer.
We believe that the Supreme Court’s decision that the death caused by the H1N1 virus (swine flu) as a work accident should be a precedent for COVID-19. In its decision, the Supreme Court stated that there was an appropriate causal link between the subsequent damage and the incident. In COVID-19 disease, depending on the incubation period, it is necessary to acknowledge that the subsequent disease state or death state is a work accident.
