The most general regulation in Turkey on the subject is the regulation under the title of “Working in case of pregnancy and milk leave” in Article 74 of the Labour Law No. 4857. Additionally, based on Article 30/a of the Occupational Health and Safety Law No. 6331, the “Regulation on the Conditions of Employment of Pregnant and Breastfeeding Women, Breastfeeding Rooms and Child Care Facilities” was published in the Official Gazette dated 16.08.2013 and numbered 28737.
Article 74 of the Labour Law contains some protective provisions on maternity leave and milk leave. Again, regulations with the same or similar content are included in the Regulation. It is seen that these provisions are about paid and unpaid leave, alleviation of working difficulties, wages, night work and working time. However, since the issue related to leave will be analyzed under the heading of granting leave, only the determination of working conditions will be explained here.
Special working conditions in Turkey during pregnancy and breastfeeding women are considered in the context of alleviating the difficulty of work and prohibiting it in certain cases, limiting the daily working time and prohibiting night work.
According to Article 74 of the Labour Law and Article 7 of the Regulation, if it is deemed necessary with a doctor’s report, the woman worker during pregnancy should be employed in lighter work suitable for her health and in this case, the wage of the worker should not be reduced.
According to Article 7 of the Regulation, when the results of the assessment reveal a health and safety risk for the pregnant or breastfeeding employee or an impact on the pregnancy in Turkey or breastfeeding of the employee, the employer shall temporarily change the working conditions and/or working hours of the relevant employee in a way that prevents the employee from being exposed to these risks. If this is not possible, the employer is expected to take the necessary measures to transfer the employee to another job.
The regulation in the sense of prohibition of work is included in Article 12 of the regulation. Accordingly, firstly, it must be determined with a medical report that breastfeeding employees are not prevented from working at the end of their maternity leave and before they start working. Employees who are determined to be inconvenient to work with a doctor’s report will not be able to work for the period and jobs specified in the report.
According to Article 9ç of the Regulation, a pregnant or breastfeeding employee shall not work more than seven and a half hours a day.
Although this is the rule, there may be cases in working life where a pregnant or breastfeeding employee works more than seven and a half hours a day. In this case, two types of problems may arise. The first one is about what should be considered as work exceeding the prescribed periods, considering that overtime work is expressly prohibited. The other problem arises when the prescribed periods are exceeded on a daily or weekly scale, especially in a job that requires less than seven and a half hours of work, but does not exceed 45 hours in total per week. In this case, if the daily working time is exceeded due to the limitation of the daily working time on a daily scale in such jobs, this exceeded period should be accepted as overtime work regardless of the weekly total.
According to Article 8 of the Regulation, female employees shall not be forced to work at night from the date of determination of their pregnancy with a medical report until the birth in Turkey. Additionally, in accordance with the second paragraph of the article, it is forbidden to work at night for one year following the birth of the newborn employee. At the end of this period, they cannot be forced to work at night during the period determined by a health report to be unfavorable in terms of health and safety.
A similar regulation is regulated in Article 9 of the Regulation on the Conditions of Night Shift Work of Female Employees issued according to Article 73 of the Labour Law No. 4857 and Article 30/a of the Occupational Health and Safety Law No. 6331.
Accordingly, in Turkey, female employees are prohibited from working in night shifts for a period of one year starting from the determination of their pregnancy with a doctor’s report until the birth, and breastfeeding female employees starting from the date of birth, without prejudice to the provisions of their own legislation. Again, for breastfeeding female employees, this period must be extended for another six months if it is documented with a report from the workplace physician in charge at the workplace that it is necessary for the health of the mother and child.
From this point of view, an interesting interaction emerges between the Regulation on the Conditions of Employment of Pregnant or Breastfeeding Women and Breastfeeding Rooms and Child Care Facilities and the Regulation on the Conditions of Employment of Female Employees on Night Shifts.
Accordingly, the Regulation on the Conditions of Employment of Women Employees in Night Shifts prohibits pregnant employees from working at night until the birth, but the Regulation on the Conditions of Employment of Pregnant or Breastfeeding Women, Breastfeeding Rooms and Child Care Facilities stipulates that employees cannot be forced to work at night. On the other hand, in the first regulation, the period of not working at night after childbirth is limited to one year and a maximum of 1 year and 6 months, but in the second regulation, this period is extended for as long as necessary for the health of the mother or child. Although this issue creates a contradiction, since the principle of worker protection is valid in labour law and considering that both regulations are at the same level (regulation), the first regulation should be valid during the period until the birth and the second regulation should be valid after the birth.