On 11 March 2020, the World Health Organization (WHO) declared COVID-19 as a pandemic and a public health emergency of international concern. While the first confirmed case of COVID-19 in India was reported on 30 January 2020, it was not until March 2020 that the public and government began taking cognizance of it. The number of confirmed cases in India has crossed 900 as of 28 March 2020, and State Governments have resorted to stringent measures to control the outbreak and promote maximum social distancing.

Several questions come up in this backdrop and remain unanswered on the business and employment front. In this guide, the Employment Labour and Benefits team at Khaitan & Co attempts to address the frequently asked questions in the current circumstances from an employment law and practice standpoint.

SECTION I: EMPLOYER'S OBLIGATIONS AND GENERAL MEASURES FOR WORKPLACE MANAGEMENT

Part A - Managing suspect cases

Who is a suspect case?

Employers may refer to the guidelines issued by WHO and National Centre for Disease Control (India) to determine whether an employee may be considered as a 'suspect case'.

Can an employer mandate medical examination of employees?

While there are no statutory provisions requiring the employer to direct employees to get medical examination done for COVID-19, the employers may, as a measure to ensure the health and safety of employees, suggest the employee to get himself / herself medically tested for COVID-19.

Can the employer perform non-invasive screening checks on employees / visitors?

Presently there are no legal provisions in this regard. However, it is advisable, that the employers provide advance notification to all employees, contract workers and visitors about the non-invasive screening measures like temperature checks that will be conducted on them. Such notification / intimation should clearly mention that the purpose of performing such screening is only during the current extraordinary situation occasioned by the COVID-19 outbreak.

Employers should ensure that screening measures are non-invasive and are undertaken as a precautionary measure to safeguard health and safety of employees amidst the outbreak.

Does the employer have an obligation to report a suspect case to the health authorities?

Currently, there are no notifications / orders issued by the government mandatorily requiring the employers to notify suspect COVID-19 cases amongst their employees. However, employers should, in good faith, report such cases to competent health authorities. The employer may consider giving prior intimation to the employee about such reporting.

Part B: Managing confirmed cases

Does the employee have an obligation to report the occurrence of the infection to the employer?

Currently, there are no notifications / orders issued by the government mandating employees to report the occurrence of COVID-19 to their employers. However, if the employment contract / company policy sets out clause relating to disclosure of any disease / illness, the employees should report COVID-19 occurrence or symptoms to the employer. In the absence of an express stipulation, the employer may encourage and notify the employees to report any such incidence, as a measure to ensure safety of other employees to contain the outbreak.

Can an employer publicly disclose the identity of an employee who has contracted COVID-19?

Any information on medical history / physical health of an individual falls within the definitional attributes of 'sensitive personal data' under the Information Technology Act 2000 and hence should not be disclosed without written consent of the concerned individual.

However, if the consent is refused, the employer should let the relevant authority take the necessary steps for contact tracing. Having said that, to ensure the health and safety of other employees, employers should warn the other employees / stakeholders who may have come in contact with the infected employee without disclosing the identity of such employee.

If an infected employee has exhausted his sick leaves and requests for additional leaves, can the employer refuse to grant the same?

Given the general duty of the employer to ensure health and safety of employees at workplace, it is important that the employers adopt sympathetic approach and grant additional leaves. Please note that the Karnataka Labour Department has issued a specific notification requiring employers to grant 28 days of paid sick to employees who have tested positive for COVID-19. Currently there are no such orders / notifications from other state governments, it is important that employers adopt sympathetic approach and grant additional leaves.

Considering the situation right now, the governments of Maharashtra, Telangana, Madhya Pradesh, Jharkhand, Delhi and Gujarat have come out with circulars / advisory asking the employers not to terminate the employee's employment or reduce their wages during the lockdown period or quarantine period for symptomatic employees. The Government of India, too, has released a similar advisory for public and private employers. We expect other states to follow this advisory.

Can an employee raise claims of unfair labour practice if his / her services have been terminated due to the infection?

If an employee's services have been terminated after he remained ill for a prolonged period, the claim, if raised, may not be sustainable since the Industrial Disputes Act 1947 allows termination of services on the ground of continued ill-health. However, any such action on the employer's part should be determined on the basis of medical opinion, if possible.

Having said that, it is important that employers adopt a sympathetic approach towards infected employees and any arbitrary action simply by virtue of an employee being treated against an employee under the treatment for the infection for 28 days, must be avoided.

How soon should an employee who has been infected and recovered be allowed to the office again?

As soon as the competent medical authorities have cleared the concerned employee i.e. two specimens turn negative within a period of 24 hours, the concerned employee may be allowed to join office again.

Part C - Miscellaneous

Can a company defer / cancel the employment of new joinees (who have not yet joined the services), in view of the outbreak and the local restrictions on operations?

Companies should review the terms of the appointment letters issued to new joinees. In general, if the appointment letter stipulates a specific date on which the employee is required to report to work, the same should be considered as the effective date of commencement of employment relationship, unless there is any other stipulation indicating the contrary. The company may, in such case, either delay the joining or revoke the offer of employment prior to the specified date of joining. Ultimately, it must be determined on a case-to-case basis as to when the employment relationship would really commence and whether the company has any flexibility to either delay the joining or revoke the offer at any time prior to such commencement.

What measures should be taken by the employer to prevent the risk of contagion at the workplace?

Employers may take the following precautions to prevent the risk of contagion at workplace:

  • cancel all business / work trips to the affected regions (please refer to the travel advisories issued by the Government of India thus far);
  • educate employees / stakeholders on basic hygiene and the manner of reporting any suspected case to the employer / public health authorities;
  • encourage self-reporting and self-quarantine;
  • frequently communicate regulatory updates / official guidelines developments to employees (WHO, Ministry of Health and Welfare, state level guidelines / regulations);
  • appoint health and safety offices and train managers / H&S officers / HR personnel on spotting symptoms, emergency response protocol and containment measures.
  • put in place a dedicated hotline and helpdesks for employees especially those working from home;
  • provide a flexible working environment that takes social distancing into account;
  • provide for a leave policy with additional sick / medical leaves, wherever necessary;
  • put in place an anti-discrimination policy to ensure that employees who are required to go on sick leave / affected employees do not feel discriminated against;
  • encourage working from home, wherever feasible and as advised by the state / local governments.
What should be done if an employee refuses to report to work because of the risk of contagion?

The Ministry of Health and Family Welfare and various state governments have issued advisory / circulars encouraging employers of private organizations to allow employees to work from home, minimize use of public transportation, maintain social distancing. In light of the aforesaid, employers should make the necessary arrangement to ensure that the employees are able to work from home.

Since the situation is evolving and the entire country is under lockdown, the employer will be required to act as per the central / state / local government advisory.

Once the lockdown orders are lifted and offices can function again, employers should ensure that workplaces are adequately sanitized and managed as prescribed by the regulatory advisories to avoid any risk of contagion to the workforce returning for work.

SECTION II: WORK FROM HOME

What preparedness should an employer undertake to facilitate work from home for employees?

The employers could adopt the following measures to facilitate work from home for its employees:

  • ensure effective communication amongst employees (including team managers/supervisors), to prevent disruption in business operations;
  • ensure employees are aware and adhere to the confidentiality obligation (as per the terms of their respective employment contract and/or handbook);
  • employees should be provided proper IT equipment such as laptop / internet / webcam, etc. to be able to effectively work from home;
  • if an employee is required to carry certain information/documents, it should be provided in encrypted format;
  • company should ensure that effective IT tools / apps such as VPN, skype, cloud storage, IM, file sharing, virtual collaboration, etc. that are needed to support work from home are in place;
  • company should ensure that employees are aware and have been trained to use IT tools / apps;
  • employers should intimate the employees about the temporariness of work from home, tentative duration and their expectations while working from home;
  • employers should have a dedicated remote working facility that allows employees to record the hours worked on a particular project on daily basis leading to effective monitoring of employees' working hours;
  • ensure work from home is not implemented on a case to case basis, resulting in discrimination of employees;
  • since, IT support is crucial in a work from home scenario, adequate support personnel may be designated by the establishment in staggered timings, to address any technical glitches;
  • employers should ensure that the contact information of all employees and relevant stakeholders are readily available.
Whether an employer is mandatorily required to allow employees to work from home?

Except where an establishment is subject to a lockdown requirement, under a local administration order, an employer may continue its operations.

In order to curb the COVID-19 out-break, several state governments have emphasized on social distancing and advised employers to allow employees to work from home. Few advisories issued by the respective state governments also stipulate that only 'essential staff/ workers' in staggered shifts should be engaged in the establishment.

Whether an employer can take disciplinary action if an employee is not performing his/her assigned duties, while working from home?

Yes, an employer can act against an employee in accordance with established procedures, if the employee is found lacking in performance of assigned duties. However, such disciplinary action should not be in violation of applicable laws and principles of natural justice, and due consideration should be accorded to the current lockdown situation and limitations for employees to perform their assigned tasks from home, such as unavailability of adequate IT resources or connectivity issues.

Any insights for establishments where work from home is unviable.

Given the nature of activities involved, work from home is not a feasible option for establishments engaged in manufacturing facilities. In this regard, unless there is a prohibition order (mandating lock down), such establishment can operate at reduced capacity by engaging less workers in each shift, however, such establishments should ensure that workplaces are adequately sanitized, with safe distance between workers in accordance with prescribed healthcare advisory (at least one meter) to prevent the contagion from spreading.

CHAPTER III: HANDLING CLOSURES / SHUTDOWNS

Is the employer required to shut down its operations on account of COVID-19?

On 22 March 2020, most states and union territories announced lockdown of shops and commercial establishments in their respective jurisdictions, subject to the exception of 'essential services' specified in the relevant lockdown orders. These orders are operative till 31 March 2020.

Thereafter, on 24 March 2020, the Indian Prime Minister announced a complete nationwide lockdown for a period of 21 days with effect from 25 March 2020 to contain the pandemic. Pursuant to the announcement, the Ministry of Home Affairs, Government of India, issued an order dated 24 March 2020 under the Disaster Management Act 2005, setting out guidelines for state governments to ensure consistency in application of lockdown provisions and the exceptions therefrom. It is expected that states would take note of the Central Government guidelines and modify their extant orders.

Employers must assess whether their operations fall under the prohibited or the permitted category in view of the state-wise orders read with the Central guidelines.

What would constitute 'essential services'?

As mentioned above, employers must review the exceptions set out in the lockdown orders being issued by the local administration (District Magistrate / Municipal Commissioner / Police Commissioner) and the above-mentioned Central guidelines dated 24 March 2020. Speaking generally, medical services, internet services, banking services, media, production / warehousing / e-commerce of food, medicines etc., water and electricity have been recognized as 'essential services'. Further, manufacturing units requiring continuous process may continue, subject to the permission of the local authorities.

Are there any statutory requirements which may be triggered during lockdown?

The lockdown may trigger the requirements of layoff under the Industrial Disputes Act 1947 (IDA). The IDA stipulates payment of layoff compensation to workmen (non-managerial employees) during the period the employer is unable to provide work to them. In addition to this, the provisions under the model / certified standing orders as applicable to the establishment may have to be referred to.

Can the employer declare the period of lockdown as 'leave without pay'?

As regards the category of workmen, leave without pay would be difficult to implement in view of the provisions of IDA. As for managerial employees, management must strategize a plan for payment of their salaries keeping in view the state advisories that have been released to urge employers to not deduct employees' salaries during the initial closure period.

Can the principal employer claim 'force majeure' as regards engagement of contract workers through a manpower service provider?

Principal employers should review the manpower services agreement executed with vendors / contractors. If there is no force majeure clause covering situations of epidemic, the provisions of the Indian Contract Act 1872 will apply. As regards COVID-19, the answer to the question of claiming force majeure is not a definitive one – several factors including the local situation, the purpose of engagement of contract workers, the possible means of fulfilment of the terms of contract etc. will have to be assessed.

The content of this document do not necessarily reflect the views/position of Khaitan & Co but remain solely those of the author(s). For any further queries or follow up please contact Khaitan & Co at legalalerts@khaitanco.com