Coronavirus, which originated from the Wuhan district of China, has been declared as a health emergency of international concern by the World Health Organization on January 30, 2020. The outbreak of the novel Coronavirus Disease (“COVID-19”) has transcended geographical barriers and already sickened approximately 15,00,00 people, with more than 85,000 deaths across the globe. Governments around the world have shut borders and imposed quarantines. Some companies have imposed travel bans on their employees, while others have completely shut down their operations due to the pandemic.
To ensure protection of individuals, the Government of India has been taking several proactive, preventive and mitigating measures ranging from progressive tightening of international travel, issuance of advisories for members of the public, contact tracing of persons infected by the virus, setting up of quarantine facilities to taking measures for ensuring social distancing including a three week lockdown period.
India, which is one of the most populous countries in the world, was largely unaffected by COVID-19 up until March, 2020, but now India has also recorded approximately 5500 cases with approximately 170 people dead and the number of cases is increasing at a rapid rate. The lack of infrastructure and sanitation along with high population density, can make India the worst affected region in the world. The impact of the epidemic on businesses and employment has been unprecedented.
Where there is a gathering of people in large numbers, the extent of COVID-19 spreading amplifies and numerous lives are put at risk.Therefore, considering thesituation,on March 24, 2020, the Hon’ble Prime Minister of India announced a complete lockdown throughout the country for 21 (twenty-one) days, as a preventive measure for containing the virus. The Central and State Governments have issued various guidelines and orders during this time to help contain outbreak. This in turn has raised several questions on the business and employment front across sectors which now need to carefully review their existing employee protection and safety policies, strategies and procedures.
Responsibilities of employers
A clarion call was issued to enterprises for undertaking initiatives for mitigating the risk associated with the spread of COVID-19 and making provisions for its employees including:
- Providing a safe work place and appropriate resources for working from home (“WFH”) that are planned, organised and maintained;
- Reimbursing the employees for the expenses incurred while working from home including internet access;
- Managing and conducting all work-related activities to ensure the safety, health and welfare of employees;
- Providing information, instructions, trainings and supervision regarding safety and health to employees;
- Having plans in place for emergencies;
- Promoting video conferencing for meetings over face-to-face meetings; and
- Formulating an emergency response team which acts as an intermediary between the top-level management and the employees and also ensuring coordination within the company.
Responsibilities of employees
The ongoing pandemic casts a duty not only on the employer, but also on the employees such as:
- To cooperate with their employer and follow instructions;
- To protect themselves and others from harm during the course of their work as well as the official equipment, for instance, taking care of any laptop provided by the employer and reporting any defects in the same to the employer immediately; and
- To report any injury arising from work activity to their employer immediately.
Work from home
a) Confidentiality and data security This is one of the major aspects that employers should consider while allowing WFH to its employees. Therefore, employers should take additional data security measures to ensure that their IT infrastructure and allied resources are up to date and protected and should also conduct training sessions on a regular basis regarding the monitoring and usage of the company’s data.
b) Tracking of productivity and performance levels In the traditional working atmosphere, employers build a mechanism to test the levels of productivity and performance of each employee by closely monitoring their day-to-day activities, handling of clients, processing of information and timely delivery of work deliverables. Considering the prevalent atmosphere, the employer will have to adapt to the concept of WFH and can make use of several online applications for assessing and monitoring performance of their employees who are working remotely.
c) Working hours There is no specific legislation which regulates or governs the concept of WFH. Accordingly, the prevalent employment laws that would otherwise be applicable to the employee while they are working from home would continue to apply. In this regard, it be noted that employment laws are subject to specific amendments prescribed by the Central or State Governments from time to time.
Health laws in India
Article 42 of the Constitution of India states that humane conditions at work should be ensured. In order to ensure a healthy environment at the workplace, various laws have been formulated including:
a) The Factories Act, 1948 (“Factories Act”) The Factories Act is the principal legislation which governs the health, safety, and welfare of workers in factories. A factory under the Factories Act is defined as a place using power, employs 10 or more workers or 20 or more workers without power or was working any day of the preceding 12 months. However, under Section 85 of the Factories Act, the State Governments are empowered to extend the provisions of the Factories Act to factories employing fewer workers. According to Section 7A of Factories Act, it is the responsibility of the occupier to ensure the health, safety and welfare of all workers while they are at work in the factory. Further, Section 11 to 20 of the Factories Act deals with provision of environmental sanitation that protect the workers from hazardous environment. During this pandemic, State Governments are according paramount importance to the health, safety and welfare of the workers and employers must also ensure the same.
b) The Disaster Management Act, 2005 (“Disaster Management Act”) The Disaster Management Act provides for effective management of disasters. The Disaster Management Act marks a paradigm shift in the nature of disaster management in India with focus shifting towards disaster mitigation, prevention and preparedness. The Disaster Management Act deals with disasters, both natural and man-made and establishes the National Disaster Management Authority at the central level.
A ‘Disaster’ under Disaster Management Act is defined as, ‘a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or manmade causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area.’
The Supreme Court in N.D. Jayal and Anr. v. Union of India (UOI) and Ors. (2004)9SCC362observed that, disaster management means all aspects of planning, coordinating and implementing all measures which are necessary or desirable to prevent, minimize, overcome or to stop the spread of a disaster upon the people or any property and includes all stages of rescue and immediate relief. It is a proven fact that a lot of human suffering and misery from large number of disasters can be mitigated by taking timely action, preventive measures and prior planning and this is possible only through a well-functioning disaster management framework. In light of the aforesaid definition, COVID-19 has been considered as a disaster, demanding strict management for preventing it from spreading further and providing relief to people who are currently affected by it.
c) The Epidemic Disease Act, 1897 (“Epidemic Disease Act”) The Epidemic Disease Act provides for the better prevention of the spread of dangerous epidemic diseases. Further, the Government is also empowered under the Epidemic Disease Act to exercise control and to prevent any epidemic or spread of epidemic in the States or country.
If the public at large is threatened with an outbreak of any dangerous epidemic, the States may authorise an agency or office to determine the process and take responsibility of all expenses incurred in relation to compensation, travel, temporary accommodation, segregation of infected person, etc.
The Government of India, in partnership with the World Bank and in accordance with the Epidemic Disease Act formed the Integrated Disease Surveillance Programme (“IDSP”) in 2004. The IDSP, through its call centres had previously proved efficient in spreading awareness amongst people during the swine flu outbreak.
Further, it be noted that the Ministry of Labour& Employment has issued a department order letter dated March 20, 2020 vide D.O No. M-11011/08/2020-Media and the Ministry of Home Affairs has issued an order dated March 29, 2020 vide Order No. 40-3/2020-DM-I(A), which prescribe that an employer has been (a) advised to deter from deducting the salaries of employees and (b) directed not to deduct wages of workmen during the period of outbreak of COVID-19. Since the lockdown orders have been issued under the Epidemic Diseases Act and the Disaster Management Act, violating the same would have penal consequences in certain cases wherein the State Governments have specifically mentioned that “All the Government as well as private establishments shall make payments of wages/salaries fully to the workers/employees including those working under contract and outsourcing basis during the lockdown period. Any violation will be viewed seriously and will invite penal action under The Epidemics Disease Act 1897.” Similarly, several other orders, notifications and guidelines have been passed by the Government of India and its ministries relating to the implications of labour and employment laws.
Diligent planning for global health emergencies can help protect the interest of all stakeholders such as employers, employees and its customers. However, success of plan depends upon the good execution of the same. Companies should use the current situation of lockdown to optimize and test the efficiencies of their plans.
Even at the end of the lockdown, companies should, as a prudent measure, put in place various safeguards to protect themselves as well as their employees till the effect of COVID-19 is wiped off. Additionally, it be noted that in case the lockdown has been lifted by one State where the employee works but has not been lifted in the State where such employee is residing, then the employee should not be forced to be physically present where the employee has its employment. The policies developed by companies and organisations will prove valuable during these trying times and as well as in the future.
[The authors are Joint Partner and Associate, respectively, in Corporate Advisory team, Lakshmikumaran& Sridharan, Gurugram]