The World Health Organization has declared coronavirus a “pandemic.” What is a pandemic? A pandemic is a disease epidemic that has spread and affects a large region, for instance, across multiple continents or worldwide. Those who know the medical aspects of this epidemic have been writing about it and we are all sharing this information. This is the vital aspect, of course. But, at the same time, we are frequently asked legal questions. After all, this is an extraordinary situation. Here are some main topics concerning the legal aspect of this pandemic.
Can the corona virus outbreak constitute a “force majeure”?
What is a force majeure? It is a French term that means “superior force.” It is a common clause in contracts that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties such as a war, strike, riot, crime, plague or natural disaster, prevents one or both parties from fulfilling their obligations under the contract. Natural disasters such as earthquakes, floods, fires, and epidemics are considered force majeure.
As defined above, a disease declared to be a pandemic easily constitutes force majeure. Lawyers of certain institutions have unfortunately given statements that, despite this horrible global situation, it was not a force majeure. In an environment in which people cannot even leave their houses, it is not possible for them to continue their business lives as if nothing has happened. As a matter of fact, the Turkish Supreme Court of Appeals (Yargıtay) has decisions to this end.
If the coronavirus is force majeure, then how does this situation affect commercial activities and all kinds of legal contracts?
First of all, the acceptance of the coronavirus as a force majeure in one country does not mean it will be accepted likewise everywhere in the world. For instance, if the disease has not spread to the African continent, then it does not affect the trade between countries in Africa. But it does affect the trade between an African country and Italy where the disease is widespread. Nevertheless, in a situation where the disease is active but there is no “impossibility of performance,” then obligations should be met in accordance with “good faith.” Those who are in places where the disease is active and are faced with the claim that they have not fulfilled their obligations, the affected party does not need to provide proof. But, good faith principles apply and as long as it is possible, it is important that obligations are met.
If there is an issue of “impossibility of performance” because of force majeure, there will be no mention of fault for the debtor. The obligor will not be responsible for these debts anymore. Nevertheless, if postponement or suspension of the obligation is possible, these means are to be resorted to first of all.
Even though the case of an epidemic disease affecting legal relations will be accepted as a force majeure in any future contract to be drafted, it would be legally advantageous to include, in any case, a clear clause related to epidemics being accepted as force majeure. As a matter of fact, in the International Chamber of Commerce (ICC) Force Majeure Clause 2003, it is advised to draft a general force majeure formula providing a comprehensive list of force majeure events, including epidemics.
Could a state of emergency be declared because of coronavirus?
It can. According to the Constitution of the Republic of Turkey, articles 119 and 120 state in what circumstances the council of ministers could meet, chaired by the president, and declare a state of emergency.
Accordingly, in cases of natural disaster, dangerous epidemics and severe economic depression situations, a state of emergency can be declared in one region, more than one region, or the entire country for no more than six months.
As a matter of fact, countries such as the U.S., Italy and Spain have declared states of emergencies because of coronavirus. The declaration of state of emergency provides an environment that helps gain time in terms of legal proceedings but it is now a phobia in Turkey. Of course, the declaration of state of emergency is not needed in terms of the measures to be taken related to the disease. However, when one considers that the disease increases rapidly and exponentially, if figures reach an uncontrollable level, then a declaration of a state of emergency will enter the agenda.
Will the declaration of a state of emergency be counted as force majeure? It is not possible to count only the declaration of a state of emergency as force majeure. As explained above, for force majeure to be mentioned, the epidemic should cause impossibility of performance. In other words, the state of emergency may be declared but if there is no “impossibility of performance,” then the disease will not be counted as force majeure.
Are we obliged to turn in a person suspected of carrying the coronavirus?
Yes, the laws oblige us to do so. The Turkish Penal Code, Article 432 states conditions for involuntary internment as a protective measure. The list can be summarized as mental illness, mental weakness, substance abuse, contagious diseases which possess danger to society, and so on. Also, according to the 57th article of the Public Health Law in Turkey number 1593, several diseases are listed that are contagious and have to be reported.
Thus, as citizens, when we see a suspicious or infected person, we can report them to officials (police or health officials) with regards to public health and safety. But this situation should absolutely not be abused. Nobody should be reported because of personal revenge or because they are trying to have fun. Otherwise, there is criminal liability.
Even though we have an obligation to report suspicious or infected cases, we cannot in any way medically treat these persons. For instance, we cannot perform any activity violating their individual rights or personal immunity.
Would a person transferring the coronavirus be prosecuted?
Yes, if the act is done deliberately.
According to penal law, to constitute a crime, a moral element should be present; in other words, the presence of intention is investigated. If a person is aware that they have the coronavirus (for instance if they have been tested positive) and infect another person, then the crime of “willful murder or injury” will be in question. Indeed, since anybody diagnosed with coronavirus is immediately put under quarantine, such a situation is not quite possible at this stage. But in the future when the number of cases increases, several other situations may occur. If a person is aware that they have symptoms of the coronavirus and have not taken the necessary precautions, in the case that somebody else is infected, then “murder or injury with eventual intent” may be brought up.
It is our civic duty to take all possible measures in order to keep the disease under control.
Would a person not following the rules of quarantine be prosecuted?
Yes, they would. Article 195 in Turkish Penal Code is very clear:
“Contrariness to the precautions relating to epidemics
ARTICLE 195-(1) Any person who refuses to comply with the precautions imposed by the authorized bodies at places under quarantine, due to someone becoming ill or dying from that disease, to avoid the spread of disease, is punished with imprisonment from two months to one year.”
For instance, we read a news story about a father kidnapping his daughter who was under quarantine in the hospital in Düzce, central Anatolia. This person should be prosecuted according to article 195 of the Turkish Penal Code.
Will unpaid leave imposed due to the coronavirus be deducted from one’s annual leave allowance?
This is the most frequently encountered complaint in this period. Employers force employees to use their accumulated annual leaves, give them unpaid leave and deduct those days from their annual leaves.
Both of these practices are unlawful. No employer can force their employees to use their annual leave. This is turning the forced closure of businesses into an opportunity and an example of capitalist manipulation. The worker can take annual leave, of course, if they wish to.
On the other hand, “unpaid leave” is a right that can be used with mutual consent. When the risk of the coronavirus and the situation of force majeure are considered, employers should be able to grant this right to employees as broadly as possible. The unpaid leave used by the employee cannot be deducted from the annual leave later.
Also, according to Labor Law, article 55, the period of unpaid leave has a limited scope.
Is the coronavirus a justified reason for cancellation of a labor contract?
No, it is not. Not only for coronavirus, but for all sicknesses, if an employee is sick and there is the possibility of healing, then the employer has no right to cancel the labor contract. However, if it is certain that the illness cannot be cured and if there is harm for others when the employee is back in the workplace, then the employer may have a right to cancel.
Can the employer give “paid leave” to employees in this period?
The types of paid leaves are limited in the law: Annual leave, maternity leave, part-time maternity leave, marriage leave, paternity leave, death leave, handicapped child treatment leave, periodic control leave, breastfeeding leave, job search leave and adoption leave.
However, there are paid leave practices resorted to nowadays all over the world because of coronavirus. Starbucks decided to give paid leave to its employees under the label of “disaster payment.” The aim for the company in giving this leave was to prevent them from being exposed to COVID-19, or, in those cases when they need to take care of their loved ones, the employees can stay at home for 14 days and be able to quarantine themselves at home. At the end of the 14 days, the employers can switch to vacation payment, sickness payment or individual leave.
Right now, the demands of the employees are in this direction, indeed, because the danger is huge and there are financial difficulties for families. On the other hand, of course, production should not stop. It is important that companies use their initiatives in this direction and grant paid leave to employees as much as possible.