New Ways of Working

Explore and keep track of key legal and compliance considerations for multinational employers as new ways of working become increasingly embedded as the pandemic begins to recede. Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

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Austria

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First, it should be noted that in the Austrian legal system a distinction must be made between remote working and working in a home office. While remote working regularly includes any work without a fixed workplace (eg, also in cafés and public premises) the work in a home office is limited to an employee's place of residence or at least that of one's partner. Only working in a home office is substantially regulated by law, while remote working can still be agreed largely without formalities and is "only" subject to general labour law norms.

The most important government measure in this sector is the Home Office Act, which came into force on 1 April 2021 in response to the covid-19 crisis and the corresponding working conditions. The Home Office Act adapts various existing laws and tightens the legal framework for home office employment. The relevant provisions include a legal definition of a home office, its direct tax implications, and fundamental legal requirements for working in a home office, such as the requirement of a written agreement between employer and employee. Therefore, a home office can neither be imposed unilaterally nor is there a legal entitlement at a statutory level for any worker to work from home.

The relevant legal provisions on home offices cover all genuine employment relationships that are based on a private law contract. Those are essentially characterised by the personal and economic dependence of the worker. It can be deduced from this definition that independent contractors are not covered by those provisions. They are essentially free to determine working hours and places and only owe their contractual partner the production of a result. Therefore, they can regularly decide independently where they choose to work.

From an Austrian point of view, "gig workers" are also ordinary employment relationships under social security law, which is why the above also applies to them.

Last updated on 21/09/2021

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Turkey

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Article 14 of the Turkish Labour Act (TLA) defines remote working as a contractual employment relationship in which employees carry out their duties from home or other locations outside the workplace, sometimes through digital platforms. Based on the TLA, the Ministry of Labour and Social Security recently prepared a Regulation on Remote Working (Regulation), which came into force on 10 March 2021.

The Regulation covers all employees who work remotely under article 14 of the TLA. In this regard, the said rules shall apply to all categories of employees defined under the TLA, including but not limited to fixed-term workers, temporary workers, part-time workers and full-time workers. On the other hand, independent contractors would not qualify as workers under the TLA, as they would not be working in a way that is dependent on a specific employer.

In addition, the Ministry of Labour and Social Security has published the ”Guideline on Remote Working During covid-19” (the Guideline), to increase awareness and share with all employers and employees any information and advice about potential scenarios, problems and economic risks, especially under occupational health and safety. Since all information included in the Guideline qualifies as a recommendation, it may apply to anyone working remotely, even after covid-19.

Last updated on 21/09/2021

02. Outline the key data protection risks associated with remote working in your jurisdiction.

02. Outline the key data protection risks associated with remote working in your jurisdiction.

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Austria

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The potential data protection risks associated with remote working are largely equivalent to those associated with working in a regular workplace, but are arguably even more prevalent.

A significant potential risk factor is the transfer of personal data if it is no longer securely stored on a company's servers. In addition, employers thereby transfer responsibility for the safekeeping and use of sensitive data to the worker. In doing so, employers have a significantly reduced ability to exert any influence. Nevertheless, companies are still generally regarded as being responsible for data protection within the meaning of the General Data Protection Regulation (GDPR), which creates a certain amount of friction.

It is also questionable whether a so-called privacy impact assessment must be carried out when working in a home office.

In principle, such an assessment must be conducted if data processing – especially when using new technologies – is likely to result in a high risk to the rights and freedoms of natural persons due to the nature, scope, circumstances, and purposes of the processing.

At present, it cannot be assumed that the threshold for the use of new technologies has already been exceeded in the context of remote working. In individual cases, however, it could amount to an "organisational solution" within the meaning of the GDPR, which also triggers the obligation of a privacy impact assessment by the data controller.

Insecure data connections that might not be constantly checked and maintained should also be considered. Another potential risk arises from it being easier for third parties to obtain access to sensitive data, whether it be persons in the same household or others at public places of work.

From a legal perspective, compliance with data security can also be adequately ensured for remote work, considering the GDPR and the corresponding national legal basis (Austrian Data Protection Act).

In home-office agreements, however, it is advisable to make further reference to data protection aspects. Here, companies should refer to the secure and data protection-compliant transport of sensitive hardware. Additionally, companies should take technical and organisational measures to ensure data security (eg, use of VPN, two-factor authentication with mobile phones, encryption of USB sticks, provision of a LAN network, requirements for secure storage of access data).

Last updated on 21/09/2021

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Turkey

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The key data protection risks associated with remote working are data security and the processing of additional personal data while working remotely.

Under article 12 of the Personal Data Protection Law numbered 6698 (the DPL), data controllers must take all administrative and technical measures necessary to prevent unlawful processing of personal data, to prevent unlawful access to personal data and to ensure the security of personal data.

The Regulation also stipulates that the employer must inform remote workers about workplace rules and applicable legislation concerning the protection and transfer of data related to the workplace and their assignments (which may include personal data). The Regulation also emphasises that employers must take all necessary measures for the security of data. Per the Regulation, in the remote-working agreement, the employer must determine the definition and scope of data that needs to be protected.

There is no guidance from the Turkish Data Protection Authority (DPA) concerning measures to be taken specifically for remote working. Its general Guideline for Personal Data Security (Data Security Guideline) and the principal decision of the Turkish Data Protection Board concerning measures required to be taken by data controllers for processing sensitive personal data (Board Resolution for Sensitive Personal Data Security) should be considered by employers. The measures listed in the Data Security Guideline and the Board Resolution for Sensitive Personal Data Security are not exhaustive. Employers must consider all necessary measures for cyber security. International guidelines and IT sector developments should also be considered.

Employers who have failed to take appropriate measures to protect the unlawful processing of or access to personal data may be required to pay an administrative fine amounting to between 40,179 Turkish lira and 2,678,859[1] Turkish lira. Furthermore, additional technical measures taken for remote-working opportunities must also be communicated to the Data Controllers’ Registry if the employer is required to register data-processing activities (eg, employers located in Turkey that have more than 50 employees or have a balance sheet of more than 25 million lira fall under this obligation). Otherwise, although it may not be an imminent risk, an administrative sanction amounting to between 53,572 lira and 2,678,859 lira may be applied against the employer.

Lastly, if having remote-working employees requires an employer to process additional employee data, then the employer must inform their employees accordingly by providing an appropriate privacy notice under the DPL. Otherwise, they may be fined between 13,391 lira and 267,886 lira. The employer should determine what legal ground should be applied to the data processing due to remote working. If the applicable legal ground is consent but consent is not obtained lawfully from employees, then the employer may face an administrative fine of between 40,179 lira and 2,678,859 lira for unlawful processing. 


[1] All administrative fine amounts mentioned in this questionnaire will be updated for each year based on a re-evaluation determined annually.

Last updated on 09/02/2022

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

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Austria

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Relevant here are first the restrictions on the employer's control of working time. Both the Working Time Act and the Rest Periods Act also apply to remote work and to work in a home office. However, section 26 paragraph 3 of the Working Time Act provides that in the case of work that is predominantly carried out in the home, only records of the duration (not the specific beginning and end) of the working time are to be kept. If the working hours are fixed, only deviations must be recorded.

The practical possibilities of monitoring work performance are manifold due to the IT tools that are now available (eg, log files, webcam). In contrast, in Austrian labour law, the employer's ability to control is subject to important restrictions. Control measures that affect human dignity require either the consent of the works council or – if such a council does not exist – the consent of the respective worker. Both attendance and performance or productivity controls can be relevant here. According to case law, the question of whether human dignity is affected must be assessed on a case-by-case basis. In addition to the employer's interest in monitoring, the way the monitoring is carried out is also decisive, so that the possibility of constant electronic monitoring (for example, by controlling keystrokes or screen duplication) certainly affects human dignity[1].

However, it is of course lawful to check the availability of employees during working hours.


[1] Huger in Huger (Hrsg), Home Office und mobiles Arbeiten [2021] Rechtliche Rahmenbedingungen.

Last updated on 21/09/2021

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Turkey

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One way to monitor employee activity in the context of remote working could be to control employees’ use of servers, e-mail accounts and internet while using the employer’s equipment. In Turkey, it is generally accepted that employers are authorised to control employees’ use of servers, e-mail accounts and internet from their equipment within the scope of their right to manage, and there are no particular rules or exceptions as to remote working.

However, even though employers are entitled to such control, monitoring should be proportional to the legitimate purposes of the employer, such as controlling productivity and quality, or providing security. Employers should inform their employees about monitoring on the equipment and servers as well as the reasons for it. Furthermore, employers must provide necessary information about the scope of their monitoring activities to employees under the DPL. Otherwise, there is a risk of an administrative fine.

Employers should also bear in mind that, during such monitoring, they must avoid violating privacy rights. The Constitutional Court recently held that if employees are informed that their e-mails are monitored, the secrecy of private life and freedom of communication must not be violated. The Constitutional Court also stated that the conflicting interests of the employer and employees should be balanced fairly and any intervention by monitoring e-mail accounts should be evaluated on the grounds of proportionality and the legitimate purposes of the employer.

From a data privacy perspective, employers firstly should determine what personal data needs to be processed to if employers have a legitimate interest to monitor employees’ activities, whether the processing of such data may potentially harm employees considering their rights, and whether employers have any options other than processing such personal data when trying to achieve this legitimate interest. Employers must apply a balance test to determine whether its legitimate interest overrides the personal rights and interests of their employees. Otherwise, employers cannot depend on legitimate interest as a legal ground for processing and will need the explicit consent of their employees to apply the relevant monitoring tool. In any case, if any monitoring requires the processing of sensitive personal data, consent will be required as per the DPL. Even if consent is given to employers, this does not mean that they can use monitoring tools to process any personal data that is not required to achieve the legitimate purposes of the monitoring. Any processing in contravention of the DPL (including the general principles applicable to data processing) may impose a risk of an administrative fine.

In light of the above, each monitoring tool considered by employers must be evaluated on a case-by-case basis for determining which legal ground is applicable and to what extent.

Last updated on 21/09/2021

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

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Austria

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The basic obligation of employers to reimburse employees for expenses incurred on behalf of employers already results from general private law for all forms of remote working (more precisely: section 1014 of the General Civil Code).

However, the reimbursement of costs is more precisely defined for work in a home office. Employers are, in principle, obliged by law to provide home workers with the necessary digital work equipment. If an arrangement has been made by works agreement or individual agreement whereby the employee provides digital work equipment, which includes the necessary data connection, the employer shall pay the reasonable and necessary reimbursement of costs. To this extent, the employer is obliged by law to pay compensation.

This expense is to be borne by the employer, who may, however, pay a so-called home office allowance tax-free to the employee up to a limit of €300 and thereby, or by paying an appropriate lower amount, compensate the employee for expenses, including those resulting from increased internet or electricity consumption.

Last updated on 21/09/2021

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Turkey

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As per article 7 of the Regulation on Remote Working, it is essential that the materials and working tools required for the remote employee’s work are provided by the employer, unless otherwise agreed in writing.

In practice, many global companies adopt policies to make further payments to employees to reimburse office supplies, internet, etc. Therefore, it may be favourable to reimburse employees for costs associated with remote working.

Last updated on 21/09/2021

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

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Austria

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Labour Law:

The essential issue regarding labour law is the question of which labour law should apply. Often, employers will want to apply a uniform labour law to all employees. However, this becomes impossible if in cross-border remote-working arrangements the labour law of the state of residence provides certain overriding mandatory rules and minimum standards (eg, in wage dumping and working time). Additionally, it may prove difficult for employers to keep track of the ever-changing legal landscape in various jurisdictions. Allowing for cross-border remote-working arrangements will oftentimes lead either to higher staffing requirements in the in-house legal department or increased recourse to local external partners. Both are associated with costs. There is also the question of work permits, depending on the applicable local law. 

Social Security Law:
 

While temporary covid-related work at home in other EU or EEA countries (and Switzerland) should not lead to any change in social security responsibilities, the corresponding provision in Austria was limited until 31 December 2021 and restricted to pandemic-related work at home. According to the information provided by the Austrian social insurance institution, covid-related work at home should not have any social insurance and tax law implications. Apart from an exceptional situation such as this, for workers who are working in more than one member state, working or earning more than 25% of the working time or remuneration in the country of residence leads to a change of the applicable social security regulations there. This is naturally associated with (sometimes) considerable administrative effort. The corresponding declarations must be made, and the payment of contributions must be ensured.

From the employer’s point of view, especially regarding accident insurance protection, it is important to note that the exact location of the remote workplace must be specified individually.

While insurance coverage in the home office is expressly clarified, the details concerning remote work in general are still controversial. These uncertainties are exacerbated in cross-border situations.

Tax Law:

If remote work is carried out across borders, this can have (potentially negative) effects on taxation. First, it must be considered that a domestic employer may employ workers who carry out their work both domestically and, for example, in a home office abroad. This may result in the establishment of a foreign permanent establishment through that home office. This would lead to a limited tax liability for the domestic employer abroad. A limited tax liability may also be accompanied by the obligation to deduct income tax via PAYE (pay as you earn). Since national legislation must be considered, this can lead to a considerable administrative effort.

In general, employees should not stay abroad for more than 183 days per year as otherwise they will be taxed in the country in which they are active. Finally, it must be considered whether there are taxation agreements between the countries and how these are structured.

Last updated on 31/01/2022

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Turkey

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Theoretically, cross-border remote-working arrangements are possible from an employment law perspective as the law does not provide a clear rule or restriction on this. However, in practice, the Social Security Institution does not consider days worked overseas as workdays subject to social security premiums. Therefore, such arrangements may not be possible.

Employers located in Turkey must consider their data privacy obligations where employees are working in the context of cross-border remote-working arrangements, because the relevant obligations are mostly applicable on a residency basis due to the principle of territoriality. On the other hand, under Turkish legislation, employers must ensure the security of data shared with the relevant employees.

In addition, employers should bear in mind that any data shared with such employees would be an overseas transfer of data. As a result, if the transferred data contains personal data, consent must be obtained for such transfer of data abroad from the data subject, covering the purpose of processing this data unless the employers have permission from the DPA for the relevant international transfer. International transfers of personal data are restricted in Turkey. Unlike GDPR, the DPL does not protect international transfers in the European Economic Area (EEA) as Turkey is not in the EEA and standard contractual clauses do not apply to the transfer of personal data from Turkey to overseas.

Depending on the sector in which employers are engaged, there may be further data-residency and data-localisation requirements. Therefore, before any cross-border remote-working arrangements, employers must evaluate whether they are subject to such requirements and how they should approach the data to be processed by the relevant employees for their duties and assignments on a case-by-case basis.

Last updated on 21/09/2021

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

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Austria

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Employers cannot unilaterally reduce employees' salaries because of remote work. A salary reduction is only possible either by mutual agreement or through a dismissal, with the option of re-employment on altered conditions.

Regarding benefits, we believe that a distinction must be made according to whether they were granted with working on office premises in mind and whether the employer has reserved a right to revoke them. In the latter case, employers may reduce or revoke benefits unilaterally. In addition, it can also be argued that, for example, meal vouchers for the company canteen are no longer issued and are not reimbursed. Such and other “social benefits by the company” can be limited to use at the company’s workplace.

Last updated on 21/09/2021

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Turkey

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As per article 14 of the TLA, remote workers cannot be treated differently from a comparable worker solely due to the nature of their employment contract. Employers cannot reduce the salaries or benefits of employees who work remotely merely on grounds of remote working. However, if there is other justification, such treatment may be acceptable.

Last updated on 21/09/2021

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

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Austria

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Vaccination is not compulsory at present (but see below and question 10). Employers will not be able to force workers to have a covid-19 vaccination, as long as no corresponding legal basis has been established. However, the legal situation of workers who refuse vaccination has not yet been fully clarified.

Employers might struggle to comply with their duty of care if workers remain unvaccinated. Co-workers, but also customers, would be exposed to a greater risk of infection if workers are unwilling to get vaccinated. Moreover, the set-up of additional protective measures might lead to a considerable increase in costs the employer is unwilling to bear.

Therefore, the employer has two options:                                                                                                                                                                                                                                                                                                                      A transfer of the worker to another workplace with a reduced risk of infection (no contact with customers or co-workers) should be considered first. If the employment contract does not provide for a transfer of workers and the worker refuses to change his or her workplace, the employer could give notice of dismissal with the option of reemployment on altered conditions. Here, for example, a change in working conditions or a change in the place of work would constitute an adequate rearrangement.

However, a dismissal or a dismissal with the option of reemployment on altered terms may not be conditional on vaccination. Yet, if there is no such opportunity for employment, the worker might be legally dismissed as he or she has nowhere to work. The question here too is if the worker can provide other evidence to meet the requirement of a reduced incidence of infection. Besides vaccination, a negative test result or a confirmation of a Covid-19 recovery will serve this purpose.

On 19 November 2021, the government announced that Austria will be the first European country to introduce compulsory vaccination against covid for all people from February 2022. The draft law is in the legislative process. After the National Assembly (one part of the legislative body) gave its approval, the draft will now also be voted on in the Federal Council (the second body). Exceptions to the general obligation to vaccinate will only be possible for medical reasons. For example, religious reasons are not considered according to the draft law. Furthermore, compliance with the vaccination order is "only" ensured by imposing administrative fines for non-compliance.

By creating a corresponding legal basis for a general obligation to vaccinate, it is expected that the employer will be allowed to take action against employees who refuse vaccination. It is conceivable, for example, that the employment relationship could be terminated because the employee cannot be employed due to lack of vaccination and is therefore not ready for work. Nevertheless, the current draft does not bring any legal changes to the workplace for the time being. Here, the 3-G rule continues to apply.

Last updated on 31/01/2022

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Turkey

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As per the Constitution, a person’s physical integrity cannot be interfered with except for medical necessity and exceptions set out by the law. As the covid-19 vaccination is not defined as a mandatory vaccine under the applicable laws, employers cannot make vaccinations mandatory for employees in principle. Indeed, the Ministry of Health announced that covid-19 vaccinations are voluntary.

The only mandatory vaccine under the current legislative framework is the smallpox vaccine.

The majority of Turkish academics take the view that termination for refusal to take a vaccine would not constitute rightful or valid grounds for termination. It also would not comply with the principle of termination being the last resort, as employers may proceed with other options such as encouraging employees to get vaccinated or implementing remote working. However certain academics argue that refusing to take a covid-19 vaccine may be valid grounds for termination in exceptional cases (such as employees in elderly care institutions).

The Ministry of Labour and Social Security issued a general letter dated 2 September 2021 regarding vaccination and testing policies that employers may apply in workplaces. The letter suggested  employers should: (i) inform all employees about protective and preventive measures against potential health and safety risks at the workplace; (ii) provide separate information in writing to employees whose covid-19 vaccinations are not complete; (iii) inform unvaccinated employees about the potential results of receiving a covid-19 diagnosis due to unvaccination within the scope of the labour and social security legislation; (iv) require that unvaccinated employees have regular PCR tests once a week as of 6 September 2021; and (v) record the test results at the workplace for any necessary action.

The fact that these arrangements were introduced by a letter from the Ministry  was heavily criticised by legal academics and practitioners, and legislators were expected to bring a law into force soon. However, pursuant to the changing policies of Turkish government regarding covid-19 as evidenced in a letter dated 14 January 2022 from the Ministry of Health, the Ministry of Internal Affairs issued a new general letter on 15 January 2022 that limited the scope of mandatory PCR testing.

Please see question 10 regarding a new general letter issued by the Ministry of Internal Affairs concerning limits on mandatory PCR testing requirements.

Last updated on 09/02/2022

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

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Austria

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In exercising his domiciliary rights, it is up to the employer or entrepreneur to decide which persons he allows to access company premises. Therefore, the employer must also be allowed to demand appropriate proof of vaccination. This action is also justified if vaccination reduces the risk of infection with covid-19 for other workers.

However, a separate question to ask is whether an unvaccinated employee is entitled to remuneration during a lockout. This assessment is to be made on a case-by-case basis. Since there is no legal basis for compulsory vaccination at present, a balance of interests must be made here. Many aspects play a role when balancing the interests of the employer and individual workers. For example, if there is a home-office agreement with a white-collar worker, the employer may link the return to work to changed conditions and therefore to proof of a covid-19 vaccination. In the case of blue-collar workers (or white-collar workers without a home-office agreement), however, a lockout with retention of salary will not be justifiable. The legislature currently provides three options to prove that there is no infection. A negative test result, proof of vaccination and a confirmation of a covid-19 recovery (3-G proof) are suitable ways of providing evidence here. Employers are not entitled to unilaterally impose stricter conditions without objective justification and will need to accept all three options. Furthermore, one must also consider the individual situation of the worker. Some workers are simply unable to have vaccinations for health reasons. Therefore, if employers opened their business only to vaccinated workers, they might also have to pay workers who have been locked out, without receiving any work performance.

This could change with the introduction of compulsory vaccination. First, the general vaccination obligation will drastically shift a possible balance of interests. Once compulsory vaccination comes into force, continued payment of wages for unvaccinated employees no longer seems necessary in most cases. However, there will be exceptions, especially for persons who cannot be vaccinated for medical reasons. In addition, workers will continue to be able to invoke the 3-G rule for the time being – until a corresponding change is made. If this regulation is not adapted, it will continue to be possible to rely on the alternatives to vaccination (testing, recovery).

Last updated on 31/01/2022

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Turkey

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As mentioned above, employers are under an obligation to protect their employees. This means that employers should consider the health of employees working at physical premises. On the other hand, as explained above, employers cannot force employees to get vaccinated, and making entry to the workplace conditional on an individual worker receiving a covid-19 vaccination may be construed as pressure by the labour courts.

Please see question 10 regarding the option of requesting mandatory PCR testing.

Last updated on 09/02/2022

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

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Austria

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In principle, there is already the legal possibility to impose vaccinations for certain professions in the health sector. However, this option has not been exercised yet. There is no legal basis for compulsory vaccination in most sectors.

Workers may choose from three options (3-G rule) when they want to enter their employer’s premises. As of now, there is no regulation stipulating an entry requirement to the workplace for vaccinated workers. However, employers may only tighten access restrictions in substantiated cases. Individuals who are not employees may be subject to stricter conditions (proof of vaccination) as a result of the employer’s right of domicile.

Last updated on 31/01/2022

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Turkey

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No. As mentioned above, the Ministry of Health has stated that the covid-19 vaccination is available voluntarily. Also, according to the Ministry of Labour and Social Security’s general letter, mandatory PCR testing was regulated as a voluntary mechanism at the employer’s discretion, considering different working methods in all workplaces.

On the other hand, the Ministry of Internal Affairs issued a separate circular, which regulated mandatory PCR testing before attending collective activities such as a concert, cinema or theatre; or undergoing intercity travel by plane, bus, train or other means of public transportation, except for private vehicles. Before, it could be possible to say that, in addition to the attendees, employees who facilitate these activities could also be requested to provide a negative PCR test result if they are unvaccinated. Likewise, the Ministry of Education introduced a similar practice at schools. All unvaccinated school staff encountering students face-to-face had to undergo mandatory PCR testing twice a week.

However, as of 14 January, no mandatory PCR testing is deemed required for the following individuals even if they are unvaccinated (or their vaccination processes are not complete) or are not recovered from covid-19 within the past 180 days:

  • those undergoing intercity travel by plane, bus, train or other means of public transportation;
  • those who attend collective activities such as a concert, cinema or theatre;
  • all school staff working at Ministry of Education schools (teachers, service drivers, etc);
  • employees of public and private workplaces; and
  • those attending student camps organised by public or private institutions;

However, mandatory PCR testing is still required for the following individuals:

  • employees of nursing homes, aged-care facilities, prisons or penitentiaries who are unvaccinated or not recovered from covid-19 within the last 180 days, or their vaccination process is not complete;
  • prisoners and convicts at prisons or penitentiaries;
  • those traveling abroad (subject to the rules of the travelled country); and
  • those undergoing intercity travel by plane who are unvaccinated or not recovered from covid-19 within the past 180 days, or their vaccination process is not complete.

With that in mind, all these announcements were qualified as recommendations in terms of their binding power, and therefore several Turkish scholars take the view that employers, especially by gathering Occupational Health and Safety Councils (if they exist), can still decide to mandate PCR testing to ensure occupational health and safety at workplaces by complying with the personal data protection rules.

Last updated on 09/02/2022

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

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Austria

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It is the opinion of the data protection authority that a targeted question about an employee’s vaccination status is not covered by the legal framework, as two other equivalent methods are currently provided to prove a low epidemiological risk at the workplace (3-G rule).

In practice, however, it will be possible for employers to leave it up to employees to disclose their vaccination status of their own accord.

Employers are currently only allowed to randomly check whether workers have been vaccinated, have recovered from COVID-19 or have been tested. The underlying regulation does not create a legal basis for maintaining data and prohibits the unilateral retention of personal data. Best practice has been to leave it up to employees to actively disclose their status to employers.

There are no specific record-keeping requirements. Due to the law, personal data may not be maintained and employees must actively disclose their status and consent to its retention. Personal data may only be stored for as long as it is necessary. Furthermore, the processing of personal data must always be limited to the necessary extent (data minimisation). The general obligations of the GDPR must also be complied with.

Last updated on 31/01/2022

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Turkey

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Medical and vaccination information can be processed by employers only with the explicit consent of employees. In labour law, considering the dynamics between employers and employees, any consent given by employees may be challenged as it may not be voluntary. Therefore, the processing of such health data, even with the consent of employees, would impose risks upon employers from a data protection perspective.

Last updated on 21/09/2021

12. What are the key health and safety considerations for employers in respect of remote workers?

12. What are the key health and safety considerations for employers in respect of remote workers?

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Austria

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Any regulations concerning the general protection of workers apply to teleworkers as well. Only workplace-related regulations do not apply here. Thus, an employer's duty of care does not end at the worker’s front door when the worker performs their work from home. In Austria, several large companies produce videos for their workers showing the ideal design of a teleworking workplace. They use these videos to support their workers to set up their teleworking workplace properly. In some cases, workers are even offered the opportunity to film their workplace and send the video to the employer. Experts then assess whether the workplace meets occupational health and safety requirements.

Last updated on 21/09/2021

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Turkey

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As per article 12 of the Regulation on Remote Working, employers must inform employees about the occupational health and safety measures required for remote working, provide necessary training, ensure health inspections, and take necessary measures about any equipment provided to employees.

Also, article 4 of the Occupational Health and Safety Law No. 6331 further stipulates that employers, in general, must:

  • ensure that all safety measures, including but not limited to those preventing occupational risks and providing information and training, are taken; order in the workplace; all necessary tools and equipment are supplied; health and safety measures are adjusted to changing conditions; and that the current status of the workplace improves;
  • supervise and monitor whether the occupational health and safety measures are complied with, and correct any incompatibilities;
  • conduct or ensure a risk assessment;
  • pay attention to an employee’s suitability for a role in the scope of health and safety; and
  • take the necessary measures so that employees, other than those who receive adequate information and instruction, to not enter places that would lead to life-threatening or a particular danger.

However, Turkish academics argue that several health and safety obligations may not apply to remote working, as it may not be practically possible to apply them. For instance, they state that certain obligations arising from the occupational health and safety legislation such as preparing an emergency plan, firefighting, first aid, and evacuation are not applicable to remote working, as it would be unreasonable to expect employers to fulfil these kinds of obligations regarding a place outside their authority.

To conclude, along with the obligations set out under the Regulation on Remote Working, employers should comply with general occupational health and safety obligations, where applicable.

Last updated on 09/02/2022

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

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Austria

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Employers' duty of care requires supervision of employees in terms of occupational health and safety and work ergonomics, even during teleworking. This was hardly dealt with before covid.

Last updated on 21/09/2021

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Turkey

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Please see question 12. The general health and safety obligations of employers do apply to the performance of tasks at or beyond the physical workplace, as much as is practicable. However, employers must avoid breaches of the right to privacy, and therefore cannot intervene in an employee’s private life beyond the physical workplace.

Last updated on 21/09/2021

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

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Austria

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No. Regarding employers’ obligations on health and safety measures, the same rules apply to mobile workers and workers based primarily at home.

Last updated on 21/09/2021

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Turkey

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Turkish law does not differentiate between remote workers being mobile or primarily at home. As remote working is legally defined as performing at home or outside the workplace through technological communication devices under an employer’s direction, there are no particular rules applicable to mobile workers or workers based primarily based at home. Both categories may be considered as remote workers.

Last updated on 21/09/2021

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

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Austria

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An employer's duty of care also includes looking after the mental health and well-being of employees who work from home. However, their duties are of course limited only to those aspects that arise from the work performance itself (hence no private factors). However, neither employers nor representatives of the labour inspectorate may enter a worker’s home. Therefore, employers are unable to examine working conditions during teleworking. Nevertheless, employers are still expected to ask their workers about their state of health and offer support. As mentioned above, some employers offer their employees creative solutions. However, the prerequisite is always that employees voluntarily cooperate with the measures if his or her home is affected.

Last updated on 21/09/2021

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Turkey

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As mentioned above, employers must take all necessary occupational health and safety measures and protect employees’ health, and physical and mental integrity. Also, according to article 417 of the Turkish Code of Obligations, employers must have all necessary equipment and tools available to protect health and safety.

The same article further provides that employers must: protect and respect the personality of their employees; ensure order in the workplace in compliance with the principle of good faith; and take any necessary measures to prevent employees from being exposed to psychological and sexual harassment and from being subject to further harm, if such an incident took place.

Last updated on 21/09/2021

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

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Austria

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Regarding changes in the organisational structure itself, large employers, in particular, are relying heavily on home offices and are already planning for a time after the pandemic. Desk-sharing models are increasing0 being considered and actively implemented. This is accompanied by a (partial) return of leased property. In the internal organisation, there is a noticeable departure from rigid hierarchies and a shift towards increased network thinking, in which decision-making processes take place jointly using digital work equipment.

The government and legislature have been very careful to minimise layoffs as much as possible and at least to counteract pandemic-related redundancies. This was achieved, on the one hand, through direct support of the economy in the form of aid packages (compensation for loss of sales, subsidies for monthly fixed costs, etc) and, on the other hand, through the widespread use of short-time work, which was largely financed through state aid. The short-time work subsidy is accompanied by a retention obligation placed on employers, so that there have been relatively few redundancies during the pandemic so far, as the companies have accepted this aid well.

 
Last updated on 21/09/2021

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Turkey

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In the scope of covid-19-related measures, the termination of employment contracts by employers was prohibited for three months from 17 April 2020, with certain exceptions. With further extensions, this ban was extended to 30 June 2021. Therefore, redundancies have been prohibited from 17 April 2020 to 30 June 2021, and any breach of this ban has been met with a fine. On the other hand, employers have been granted the authority to impose unpaid leave (without employee consent), partially or in full, on employees during this period. Up until the end of the termination ban, employees on unpaid leave have received a daily allowance from the Unemployment Insurance Fund.

Also, many companies chose to introduce salary reduction due to the economic pressure arising from covid-19 at the beginning of the pandemic by obtaining the written consent of employees.

In addition to the above, certain arrangements have been introduced to facilitate the requirements of short-time working applications, filed on the grounds of circumstances arising from covid-19.

Last updated on 21/09/2021

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

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Austria

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Austria benefits from its system of "social partnership", which is characterised by cooperation between employers' and employees' interest groups and with the government. Due to long negotiations between the social partners in the run-up to the Home Office Act, workers’ rights were safeguarded before the amendment was implemented.

Last updated on 21/09/2021

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Turkey

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In Turkey, unions have mostly provided opinions or organised demonstrations about the recent Regulation on Remote Working. For instance, the Turkish Journalists Union published a list of recommendations concerning remote working for the attention of the Ministry and its employers. As another example, the Confederation of Turkish Worker Unions issued a comprehensive study named “Remote Working with Regard to Occupational Health and Safety Aspects”.

Notwithstanding the above, in Turkey unionisation mostly exists in blue-collar industries. Therefore, these kinds of associations mostly dealt with short-time working and unpaid-leave mechanisms during the pandemic.

Last updated on 21/09/2021

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

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Austria

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Especially regarding home office work, the Austrian legislature has clarified that such work requires an agreement between employer and employee.  At the same time, however, the legal possibility was established to determine framework conditions under which home working can take place within a company through a works agreement. At this level, employee representatives (the works council) can therefore help to shape the implementation of remote working. However, the conclusion of such a works agreement is voluntary and cannot be enforced. Nevertheless, employers should inform the works council before introducing home working, as the works council has a general right to information, which in our opinion also includes the introduction of remote working.

In addition, various collective agreements for entire industries also lay down framework conditions for teleworking, although their implementation also requires an agreement between employer and employee.

Employee protection in the context of mobile working is already guaranteed by the fact that relevant worker protection laws also apply to remote work in their essential provisions. In practice, works agreements regularly provide for employers to undertake a workplace evaluation to ensure the health and safety of its employees.

Last updated on 21/09/2021

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Turkey

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The Regulation on Remote Working is silent about employee rights arising from collective labour law. However, collective bargaining agreements can regulate the execution, content, and termination of individual contracts. Therefore, remote working may be regulated as part of the content of an individual contract. As per article 41 of the Act on Unions and Collective Bargaining Agreements, unions to which at least 1% of workers in the relevant field of business are a member can execute a collective bargaining agreement for a certain business or workplace, provided that more than half of the workers employed at the workplace or 40% of the workers employed in the business are members of the union at the application date.

In this regard, the Banking-Finance and Insurance Workers Union announced that they raised this issue in their collective bargaining processes. As remote working has only become widespread during the covid-19 pandemic and the Regulation on Remote Working entered into force only recently, the influence of unions on working arrangements would vary depending on the negotiation process and their relations with employers.

Last updated on 21/09/2021