As the impact of the coronavirus pandemic increased, unpaid leave has been widely used, especially by employees in the workplace. Workers covered by social security may be placed on unpaid leave by their employers or may request unpaid leave themselves. Employers and employers of foreign workers have been asking whether foreign employees can benefit from unpaid leave rights due to the pandemic.
Conditions for Using the Right to Unpaid Leave
For reasons related to an epidemic, employers may advise employees to take unpaid leave for certain periods. However, the employer cannot impose unpaid leave unilaterally. In other words, unpaid leave must be agreed upon by both parties. In this respect, the employer’s authority to offer unpaid leave must be notified to the worker in writing under Article 22 of the Labor Law, and the worker must respond in writing to this offer within six days at the latest. If the worker does not accept the unpaid leave proposal, the offer is not valid.
An unpaid leave request can also be initiated by the employee. If the employer accepts the request, no salary is paid to the worker during the leave period and social security premiums are not paid. There are many exceptions to unpaid leave. If the employer forces a worker onto unpaid leave, especially for an indefinite period, this action may be considered termination of the employment contract. In that case, if the worker meets the appropriate conditions, they may be entitled to severance and notice pay. The same rules apply to foreign employees who hold work permits.
What Does Unpaid Leave Cover?
Foreign nationals with work permits are included within the unpaid leave arrangement. According to recent changes, the unpaid leave period was extended by two months, allowing employers to require unpaid leave through early December 2020. During this period, employees cannot be dismissed; if they are dismissed, administrative sanctions and criminal proceedings may be applied against the employer. In addition, employees on unpaid leave may receive two additional months of daily cash support.
The same conditions apply to foreign workers, and employers may request unpaid leave for foreign employees as well. However, if the required conditions are not met, employers may face administrative penalties and sanctions in relation to their foreign staff.
How Is Reporting of Missing Days for Foreigners Done?
With recent Social Security Institution (SGK) changes, new arrangements have been introduced for reporting missing days for foreign employees. Missing-day codes for foreign workers have been updated. Accordingly, short-term university employees and foreign students doing internships at universities can now be reported for missing days. Foreign insured persons whose general health insurance premiums and short-term insurance premiums are paid without old-age and death contributions can have missing-day premiums applied when reported with document types 19 and 46. For activities related to R&D incentives, underground and aboveground work, and healthcare workers subject to hazardous or arduous-service provisions, the missing-day code 25 can be used in missing-day notifications.
Another important point during the pandemic concerns foreign nationals who traveled abroad without severing ties with their workplace. These insured foreign workers may use missing days for travel time based on their exit and entry dates. Travel days are considered periods not exceeding two days excluding the country exit date and not exceeding two days excluding the country entry date. Additionally, unpaid leave for foreign employees should be recorded using code 28 — Pandemic Unpaid Leave.