On March 24, 2020, the Country's Prime Minister, very significantly, announced a 21-day nation-wide lockdown. This lockdown, consisting of nearly one-fifth of the world's population has been implemented so as to ensure effective social distancing norms, thereby preventing and containing the spread of COVID-19.

While the lockdown is indisputably critical to contain the pandemic, the impact on businesses and the economy can also not be ignored. There have been several measures that the Central Government and the State Governments are contemplating and putting in place, keeping in mind the interests of the people as also duly considering the rapidly evolving limitations and restrictions on various Indian establishments and employers.

The Ministry of Labour and Employment Law in its letter1 dated March 20, 2020, addressing the Chief Secretaries of all the States, emphasised that in view of the present challenging situation, all the Employers of public/private establishments may be advised to extend their coordination by not terminating their employees, particularly casual or contractual workers from job or reduce their wages.

For the benefit of Indian establishments and employers, we have endeavoured to set out a list of questions that we have been asked over the last couple of weeks by employers on managing their businesses and coping with COVID-19.

1. What is a lockdown, and whether all establishments need to close-down?

A Lockdown has not been specifically defined under any statute. However, under Sections 2, 3 and 4 of the Epidemic Diseases Act, 1897, the Government of India ("GOI") may take certain special measures and prescribe regulations so as to prevent the spread, and contain the outbreak of dangerous epidemic diseases.

All establishments, except the ones engaged in services relating to essential commodities, as listed in the guidelines2 issued by Ministry of Home Affairs ("MHA") on March 24, 2020 and the addendums3 to the same are required to stay shut. Several State Governments have also issued notifications describing and elaborating the scope of 'essential services' and the permissions required to continue operations thereof.

To stay operational during this lockdown, the employer's establishment must be expressly exempted from the lockdown, either by the Central or the State Government. Further, employees who are working in such exempted establishments must be provided with passes or letters that would enable and permit them to travel during the lockdown. Also, all health and safety directions prescribed by the Government to contain the pandemic would require strict adherence.

2. Can employees be asked to work from home during the lockdown? If yes, do they also need to be paid in full for such work?

Yes, employees can be asked to work from home during the lockdown to the extent that the nature of their work allows for the same. During this period, the employees would have to be paid their full salaries.

3. In the context of industries where employees cannot work from home, do they still need to be paid during the period of this lockdown?

Yes, even in industries where the employees cannot work from home, they would be required to be paid during the period of the lockdown. The Central Government, in respect of a place of employment which has been made non-operational due to COVID-19, has issued a circular that the employees of such unit(s) shall be deemed to be on duty4. Similar directives have been issued by the State Governments of Karnataka, Haryana, and Maharashtra. Additionally, the Ministry of Home Affairs on March 29, 2020, addressed the State Governments and Government ministries/departments, requiring employers of all industries, shops and establishments to pay wages to all workers without deductions, during the period of the lockdown5. The Government of Telangana6 has directed all shops and establishments (other than those exempted) to be closed during notified lock down period, and declare such days as paid holidays for all categories of employees.

4. During the lockdown, can employees be asked to utilize their accrued annual leave? Once it has been exhausted, can the employee be placed on an unpaid leave?

No, employees are entitled to use their accrued annual leave at their discretion, subject to due-approvals from their managers. While employees may be encouraged to use their accrued annual leave, they cannot be mandated or directed to do so.

As a general rule under the domestic law, employers cannot mandate employees to proceed on unpaid leave. Therefore, even in the context of the lockdown, if an employer requires or mandates its employees to not show up to work as a preventive measure or let's say, for the duration of the lockdown, the employees would still have to be paid for such days.

5. In industries exempted from the lockdown, can employees be forced to take sick/ annual leave if they have had recent travel history or have been in contact with persons who are infected, or are exhibiting symptoms of COVID-19?

Most States have issued certain notifications/orders prescribing that persons who have come in contact with people who have been infected or have had recent travel history self-quarantine for 14 to 28 days.

In this regard, where an employer is allowed to work during the lockdown under law, but the employee is unable to attend work due to the requirement to self-quarantine, the employer may possibly require the employee to take his/her annual leave or sick leave, subject to any specific Government notification. However, if the employee had travelled because of work or came in contact with a sick person due to this work, the employer may not be able to force the employee to utilize their sick or annual leave.

The Government of Karnataka has also issued a notification in this regard, mandating the grant of 28- days paid leave for employees who are infected with COVID-19. Also, the Government of Uttar Pradesh has required that employees who are infected by COVID - 19 or who are suspected to be infected are to be provided with 28-days paid leave by the concerned employer.

6. Would it be okay to ask the employees to share their medical test reports with the employer? Are there any concerns here, taking into account a data-privacy perspective?

Generally, medical data in the electronic form is considered personal and sensitive data, employers may require employees to submit a fitness/medical certificate from a registered medical practitioner, stating the employee is healthy and eligible to work.

Where a medical/fitness certificate is being provided in its electronic form, the employer would be bound to strictly adhere the requirements prescribed under the Information Technology Act, 2000 ("IT Act") and the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 ("Security Practices Rules").

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Footnotes

1. D.O. No. M 11011/ 08/ 2020- Media, issued by the Ministry of Labour and Employment Laws at https://labour.gov.in/sites/default/files/file%201.pdf

2].https://mha.gov.in/sites/default/files/Guidelines.pdf

3].https://mha.gov.in/sites/default/files/MHA%20order%20with%20addendum%20to%20Guidelines%20Dated%2024.3.2020.pdf and https://mha.gov.in/sites/default/files/PR_SecondAddendum_27032020.pdf

4. https://labour.gov.in/sites/default/files/Central_Government_Update.pdf

5. https://mha.gov.in/sites/default/files/MHA%20Order%20restricting%20movement%20of%20migrants%20and%20strict%20enforement%20of%20lockdown%20measures%20-%2029.03.2020.pdf

6. https://covid19.telangana.gov.in/wp-content/uploads/2020/03/GO-45.pdf

Originally published April 10, 2020

For further information please contact at S.S Rana & Co. email: info@ssrana.in or call at (+91- 11 4012 3000). Our website can be accessed at www.ssrana.in

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.