As the world of work undergoes drastic changes due to the sudden outbreak of the Coronavirus, there are so many questions pertaining to the legal implications of some actions that employers might take due to the COVID-19 crisis. Should they reduce salaries or withhold bonuses? Can they retrench employees? Should they provide pay to their employees if they are unable to come (or prohibited from coming) to work due to the COVID-19 outbreak? There are many questions like these that have a legal implication and must be answered by legal experts.
In this third part of the weekly series, experts from ELP, Ashish Prasad, Tushar Ajinkya and Amruta Kelkar address the most frequently asked questions around workforce management.
Q1. Can we ask the employees to go on paid leave?
No. Availing paid leave is the prerogative of the employee. There is no provision under Indian labour laws which permits the employer to compel the employees to go on paid leave. Unless the employment contract provides that employees may be asked to go on paid leave in case of an epidemic or a natural calamity, the employees will need to voluntarily agree to go on such leave.
Q2: If our company is forming part of essential services and we are working, can we deduct salary of employee who does not voluntarily attend?
The Government of India, Ministry of Home Affairs, has issued an order dated March 29, 2020 to all State Governments and Government Ministries and Departments, inter alia, requiring all the employers to make payment of wages of their workers at their workplaces on the due date without any deduction, for the period their establishments are under closure during the lockdown. Therefore, the order requiring the payment of wages to the workers during lockdown only applies to those establishments which are under closure.
However, those employees who are prevented or are unable to attend work due to external circumstances for a variety of reasons including his/her area of residence being declared a containment zone by the local authorities etc., cannot be treated as absent and their salaries cannot be deducted.
Q3: Does the GOI order apply only to ‘migrant’ workers or all workers?
Though the order issued by Government of India, Ministry of Home Affairs dated March 29, 2020 in the recitals, inter alia, states that it has been issued to mitigate the hardship of the migrant workers, the operative part in paragraph (iii) does not make any such distinction between the ‘migrant’ and ‘non-migrant’ workers and therefore, the requirement to make payment of wages to workers at their workplaces on the due date without any deduction during the lockdown period applied to all workers.
Q4: If the migrant worker has gone to his / her home town and can’t attend work – are we still required to pay?
Yes. The Government of India, Ministry of Home Affairs, has issued an order dated March 29, 2020 to all State Governments and Government Ministries and Departments, inter alia, requiring all the employers to make payment of wages of their workers at their workplaces on the due date without any deduction, for the period their establishments are under closure during the lockdown. This also includes those workers who have gone to their hometowns and cannot attend work.
Q5: Does any of the orders/circular prohibit termination/retrenchment?
The Ministry of Labour and Employment on March 20, 2020 has issued ‘advisories’ to the Department of Public Enterprises, Ministry of Housing and Urban Affairs, all Chief Secretaries of States and UT’s asking them to issue advisories to Employers of Public/Private Establishments to extend their coordination by not terminating their employees, particularly casual or contractual or reduce their wages. In view of the Central Government advisories, most State governments have issued similar advisories.
We will continue to monitor this rapidly developing situation and provide updates as appropriate, including updating this FAQ on an as-needed basis. Make sure you are following People Matters #COVID19 to gather the most up-to-date information. In case you have any questions pertaining to regulatory frameworks around workforce management, drop an email to email@example.com