COVID-19: Balancing employer's interests with employee's safety
The outbreak of Coronavirus Disease 2019 (COVID-19) has had a far-reaching impact on businesses and personal lives of people around the world. Given that the outbreak has resulted in 114 confirmed cases as of 16 March 2020 (5 PM), countries have been taking stringent steps including travel restrictions, locking down public places, to avert the risk of contagion.
Amidst these measures, employers across jurisdictions have been trying to find ways to protect their business interests and balance the same with workplace and workforce safety. In this article, we attempt to put forth and address some of the vexing questions faced by employers in India to achieve the said objective. Needless to mention, while the discussion offers few suggestions on workplace management, employers must independently assess the viability thereof in view of their business model and operational requirements.
Monitoring regulatory developments
Both Central and State governments are issuing regulations and guidelines on a regular basis to prevent further contagion. Some important measures are set out below.
- The Ministry of Health and Family Welfare, Government of India (Ministry), has been issuing travel advisories through press releases for the past 2 months. As per the recent advisory:
- All existing visas issued to nationals of any country (except those issued to diplomats, officials of the United Nations / international organizations, as well as employment and project visas) stand suspended till 15 April 2020. Visas granted to foreign nationals already in India would remain valid, and such persons may contact the nearest FRRO/FRO through e-FRRO module for extension / conversion of their visa;
- Indians have been advised against visiting China, Italy, Iran, Republic of Korea, Japan, France, Spain and Germany;
- Thermal screening is being undertaken at all international airports across India for travelers arriving from China, Thailand, Singapore, Japan, South Korea, Hong Kong, Malaysia, Indonesia, Iran, Italy, Macau, Malaysia, Indonesia, Taiwan, Vietnam and Nepal;
- Indian nationals arriving from any destination can be subjected to quarantine for a period of 14 days. If such nationals have visited China, Italy, Iran, Republic of Korea, France, Spain and Germany on or after 15 February 2020, the quarantine shall be compulsory. In addition to the above, passengers coming from international flights would be required to fill in personal particulars including travel history;
- All passengers having travel history to China, Hong Kong, Republic of Korea, Japan, Italy, Thailand, Singapore, Iran, Malaysia, France, Spain and Germany are advised to undergo self-imposed quarantine for a period of 14 days from the date of their arrival. If such persons are employed in an organisation, their respective employers should facilitate work from home during this period.
- Several state governments including Maharashtra, Delhi, Karnataka, Haryana and Gujarat have invoked the provisions of Epidemic Diseases Act, 1897 (EDA) and issued temporary regulations (which would remain valid for a year) on COVID-19. These regulations provide that every person arriving in the concerned state from a COVID-19 affected area should self-isolate for a period of 14 days and report to the nearest government hospital if he develops flu-like symptoms. States have also designated certain authorities who would be empowered to isolate / admit a person to hospital who refuses to comply with the above-mentioned requirements. Any violation of these temporary regulations would entail a punishment (imprisonment up to 6 months / fine up to INR 1,000 / both) under Section 188 of the Indian Penal Code, 1860.
- State governments are imposing lockdown of public places including cinema halls, malls, educational institutions and night clubs for a specified period (end of March 2020) to prevent person-to-person transmission.
- In addition to the above, local authorities have powers under the municipal law applicable to their jurisdiction to take certain measures in the event of an outbreak. For instance, under the Mumbai Municipal Corporation Act, 1888 (applicable to Greater Mumbai in Maharashtra), the Municipal Commissioner has the power to inspect any place in which a dangerous disease, including an epidemic, is suspected to exist and to take such measures as are necessary to prevent the spread of contagion.
In view of the above, employers must keep a track of regulatory developments on a daily basis and assess the impact on their business.
Maintaining a dialogue with employees
It is imperative that employers and employees are on the same page in the process of assessment of risks that the outbreak entails.
- Employers should have a dedicated team of personnel who are constantly tracking the developments on the pandemic and the measures being taken by the Government of India and State governments (as discussed above) to contain the same. Such team must apprise a senior official from the human resources department / management of the situation on a daily basis, and the latter should maintain a continued dialogue with employees to state the on ground situation, precautions to be taken and any measures which may have to be undertaken by the management to ensure safety of employees. Such dialogue should also encourage employees to: (a) cancel business trips and avoid non-essential personal travel to areas affected by the virus; and (b) report travel history of themselves and their family members to any COVID-19 affected country.
- Employers should maintain an open communication with employees about potential cases of infection at workplace and steps taken by them to isolate the concerned employee. This would mitigate risk of any legal challenge by an employee against the employer on the ground that the employer did not take reasonable steps to ensure safety at workplace. That said, such communication should not reveal the identity of the suspected / infected case.
Building a contingency plan that prepares the employer for the worst
The stricter travel advisories issued by the Ministry and the local measures pertaining to lockdown have only made it necessary to have a contingency plan in place that brings within its fold the following aspects:
- Remote working: Several multinational companies having operations across states / countries are devising / implementing work from home facility for employees wherein suitable provisions are set out for enabling additional technical support to employees such as virtual private network. While it is advisable for employers to do so, they should, before implementing such policy, assess its feasibility and the extent to which it may be implemented without disrupting business operations. For companies having manufacturing facilities, providing work from home facility may be difficult, given that certain employees may be required at the shop floor for assembling parts, conducting quality checks, etc. In such cases, employer may implement remote working in batches. Further, employers must ensure that confidentiality of company property is maintained at all times. The information technology team should be on the stand-by to provide any assistance in this regard.
- Provisions on lockdown: The contingency plan should take into account a situation where a state government declares a lockdown of operations of the employer or of its vendors. Such an event may trigger layoff provisions under the Industrial Disputes Act, 1947, read with the standing orders framed under the Industrial Employment (Standing Orders) Act, 1946, if any, applicable to the establishment. Speaking generally, the employer may have to provide at least 50% of the basic wages and dearness allowance to employees during the lockdown phase, unless there is a more favourable provision under the standing orders (model / certified).
Dealing with suspected / infected cases
- Suspected case: A person may be considered as a suspected case if any of the conditions set out below are met:
- A person with acute respiratory illness (fever and at least one sign / symptom of respiratory disease such as cough or shortness of breath) and a history of travel to a COVID-19-affected area during 14 days prior to the onset of the said symptoms;
- A person with acute respiratory illness who has had any contact with a confirmed or probable COVID-19 case during 14 days prior to the onset of the symptom(s); or
- A person with severe acute respiratory infection (fever and at least one sign / symptom of respiratory disease such as cough or shortness of breath) and requiring hospitalization, wherein there is no other etiology that fully explains the clinical presentation.
In the event that there is a suspect case reported by the concerned employee himself or by any other employee / official in the organisation, the management may require the employee to work from home and get himself medically examined.
- Confirmed case: In the event that there is a confirmed positive case of COVID-19, the employer should allow the employee to avail his accumulated leaves. If the employee has already exhausted his leaves, the employer should nonetheless provide for additional paid sick leaves. Refusal to grant such leaves would discourage the employees from reporting their medical condition.
In this regard, the government of Karnataka recently issued a circular requiring employers to grant 28 days of paid sick leave to the employee once the latter produces a medical certificate in this regard, even though the Karnataka Shops and Commercial Establishments Act, 1961, only provides for 12 days of sick leave. If the medical condition of the employee does not improve after a reasonable period (say, a month), the employer may consider whether the employee’s services can be continued.
Mandating medical examination
An oft posed question is whether Indian laws allow an employer to require its employees to subject themselves to medical examination. One may argue that an express stipulation in this regard in the appointment letter or the company policy to which the employee has consented is required. However, in view of exceptional cases such as the outbreak of an epidemic and given that the employer has a general duty under the labour laws in India to ensure health and safety of its employees, such examination sans consent may be justified, provided the employer applies the requirement to employees across the board and protects the medical records of the employees in accordance with the information technology law in India.
Last, but not the least, maintaining workplace hygiene
Regular sanitization of workplace is one of the fundamental duties of the employer in the backdrop of COVID-19. It is imperative to have common facilities / workstations cleaned with alcohol-based disinfectants and to make sanitizers available to employees at reasonable distances. Posters / notices showing basic hygiene etiquettes may help promote workplace hygiene.
Times like these call for prompt action which is both rational for the business needs and sensitive to the concerns of the workforce. Waiting for a positive case to be reported at the workplace may jeopardise both the safety of the employees and the business interests of the employer. Employers should be ready with a business continuity plan that ensures seamless transformation from at-office culture to work from home culture without significant disruption of operations. Technology can play a major role in this process.