Regulation on Remote Work
The Regulation on Remote Work (“Regulation”) has been enacted by publication in the Official Gazette on 10 March 2021. The remote work model was initially regulated in 2016 within the scope of the amendments to article 14 of the Labor Law. The Regulation has detailed the provisions stipulated under the Labor Law.
What is Remote Work?
The Labor Law and Regulation define remote work as “an employment relationship in which an employee performs work at home or outside of the workplace using technological means of communication, within the framework of a work organization created by an employer”. Remote work allows employees to work from home, from a local center that operates as a co-working space, or even when travelling.
Form of the Agreement
The Regulation stipulates that a remote work agreement must be concluded in writing. Instead of executing a new employment agreement for existing employees, provisions regarding remote work may also be drafted as an annex to the employment agreements.
The agreement should include the definition of the work, method of performance, working hours, the duration and the place of the work, matters regarding the salary and the payment method, the equipment provided, and the obligations for their protection, communication methods between the employer and employee, and provisions regarding general as well as special working conditions.
Costs Related to the Performance of the Work: Production Costs, Working Environment and Equipment
The costs related to the performance of the work shall vary according to the nature of the remote work. However, these costs may be addressed in three main categories: production costs, working environment, and equipment.
According to article 8 of the Regulation, necessary expenses directly related to the production of goods or services arising from the performance of the work and by whom these expenses shall be covered should be determined in the agreement. However, the Regulation contradicts the relevant provisions of the Turkish Law of Obligations (“TLO”). In article 414 of the TLO, it is regulated that all necessary expenses for the performance of the work shall be covered by the employer. Therefore, any agreements stipulating that necessary expenses for the performance of the work shall be covered thoroughly or partially by the employee may be declared invalid.
If necessary, arrangements regarding the working environment for remote work shall be completed before the work starts. The method of covering the costs arising from such arrangements shall be determined jointly by the employee and the employer. It may be useful to regulate such arrangements regarding the working environment in the employment agreement or related annexes. Otherwise, the employer may be obligated to cover the relevant costs.
The equipment required for the performance of the work shall be provided by the employer unless otherwise determined in the employment agreement. Accordingly, it is also possible for the parties to agree that the employee shall acquire the necessary equipment for the performance of the work. According to article 413 of the TLO, if the work equipment is provided by the employee, the employer is obligated to provide an adequate compensation to the employee, unless otherwise determined in the employment agreement. Thus, it may be useful to regulate such arrangements in the employment agreement or related annexes.
The equipment list including information regarding the costs of the equipment at the date of delivery to the employee must be recorded by the employer under the employment agreement or a separate document.
During remote work, work-related data may be accessible by different means, as this data is required to be processed for the performance of the work. In accordance with the Regulation, the employer is obligated to inform employees of the workplace rules and applicable legislation related to the protection and sharing of work-related data.
In line with this obligation, the employer is required to ensure that the definition and scope of the data to be protected is indicated the employment agreement. The employees are obliged to comply with the operating rules determined by the employer to protect such data. Just as the employer's data should be protected during remote work, the privacy of the employees and the practices relating to the protection of their personal data also must comply with the applicable legislation. Workplace policies and procedures should include regulations and practices regarding data protection.
Occupational Health and Safety
In accordance with the Regulation, the employer is obligated to inform the employee about occupational health and safety measures, to provide the necessary training, to provide health supervision, and to take necessary occupational safety measures regarding the equipment provided, considering the nature of the remote work performed by the employee. Although the measures to be taken by the employer according to the Regulation seem to be limited to the equipment provided to the employee, employers are also responsible for the measures to be taken against all physical and psychosocial risks within the working environment.
Work That Cannot Be Performed Remotely
The Regulation stipulates that works that involve hazardous chemicals and radioactive materials, processing these materials or working with the waste of these materials; or that carry the risk of exposure to biological factors cannot be performed remotely.
For works carried out by public institutions and organizations through service procurement in accordance with the relevant legislation and for the units, projects, facilities, or services that have strategic importance in terms of national security, the public institution and organization responsible for the unit, project, facility, or service, or the public institutions and organizations receiving the service on these units, projects, facilities, or services will determine which works are not suitable for remote performance.
Transition to Remote Work
The employment relationship may be established as a remote work agreement at the beginning of the employment relationship or may be transitioned to a remote work model through mutual agreement between the employer and employee. The procedures regarding the transition to remote work shall be carried out in writing. As a rule, the employee's request is required for a transition to remote work. The same procedure applies when the transition from remote work to working in the workplace.
If the remote work will be applied to the whole or part of the workplace for compelling reasons, the employee’s request or approval shall not be sought for the transition to remote work. It is generally accepted that the COVID-19 pandemic should be considered a compelling reason.
The new regulations regarding remote work have eliminated significant uncertainties on the matter. Employers who have already transitioned to remote work thoroughly or partially in the workplace are required to amend their employment agreements in accordance with the Regulation, and to carry out complementary tasks on issues such as data protection and occupational health and safety.