Article (April-2020)

Articles

FAQs on rights and responsibilities of employers around COVID-19 pandemic

Raunak

Designation : -   Founding Partner

Organization : -  Avitr Legal, Noida

01-Apr-2020

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What are the key advisories/notifications issued by the central government which the employers should be mindful of?

  • Advisory for exemption to mark biometric attendance in AEBAS

Government of India, by way of an advisory dated March 6, 2020, advised all the Ministries/Departments to exempt their employees to mark biometric attendance in Aadhar Based Biometric Attendance System (AEBAS) till March 31, 2020 because the most common method of transmission of virus seems to be through infect surfaces.

  • Extension of time limit for payment of Employee State Insurance contribution

By way of notification dated March 16, 2020, Employee State Insurance Corporation extended the time period (from 15 days to 45 days) for payment of ESI contribution for the month of February, 2020 and March, 2020 to April 15, 2020 and May 15, 2020 respectively on account of corona virus pandemic.

  • Advisory on social distancing measures to state governments

In view of the outbreak of coronavirus, the government issued guidelines for state and union territories on social distancing as a non-pharmaceutical infection prevention and control intervention, whereby private sector organizations/employers were encouraged to allow employees to work from home wherever feasible. Further, meetings, as far as feasible, was encouraged to be done through video conferences. In addition to the aforesaid, it was advised to minimize or reschedule meetings involving large number of people unless necessary.

What are the key advisories/notifications issued by the state government which the employers should be mindful of?

Karnataka

  • Karnataka Government issues Advisory for IT/BT company employees and staff

In the wake of growing concerns about the spread of coronavirus infection, the Karnataka government has issued a 10-point advisory on March 4, 2020 asking information technology and biotechnology ("IT/BT") companies to allow employees with flu-like symptoms to work from home, advising employees of IT/BT companies to avoid non-essential travel to coronavirus [COVID-19] affected countries China, Iran, Republic of Korea, Italy, Japan and Iran and take precautionary measures in office premises. The government has advised all employees arriving on international flights entering India from any port to furnish self-declaration form and travel history to health and immigration officials.

  • Paid leave for employees infected by corona virus in the state of Karnataka

The Government of Karnataka vide notification dated March 5, 2020, amid prevention of spreading of corona virus in Karnataka, instructed labour department to take necessary action. The said notification provided that since there may be a need for leaves for infected employees, if any, the concerned employees who are covered under ESI should obtain declaration from ESI Hospital and submit to the employer to avail twenty-eight days of leave with wages. Those employees who are not covered under ESI shall avail leave for twenty-eight days of paid sick leave along with other leaves as per Section 15(3) of Karnataka Shops and Establishment Act, 1961.

[Section 15: Annual leave with wages

(3) Every employee shall also be entitled during the first twelve months of continuous service and during every subsequent twelve months of such service in any establishment to leave with wages for a period not exceeding twelve days, on the ground of any sickness incurred or accident sustained by him or for any other reasonable cause"].

Delhi - NCR

  • Delhi Government invokes Delhi EDA Regulations to ban gathering of 50 or more Persons

In exercise of the powers conferred by Delhi EDA Regulations, the following directions have been issued:

  • Suspension of all Gymnasium and SPA, Night Clubs and Theatres in NCT Delhi and Weekly Bazar in NCT Delhi till March 31, 2020.
  • Any gathering social/cultural/political/religious/ academic/sports/seminar/conference and family mass gathering (except marriages) is restricted to maximum of 50 persons in NCT of Delhi till March 31, 2020.
  • All Shopping Malls in NCT of Delhi should be disinfected daily and shall also make provisions of availability of ample number of hand sanitizers at main entrance and individual shops for visitors. All entry should be allowed only after cleaning of hands with hand sanitizers.
  • Gurugram administration advices all corporate offices to allow their employees to 'work from home'

Amid Covid-19 pandemic, by way of memo dated March 17, 2020, the District Magistrate of Haryana in compliance with the Haryana Epidemic Diseases, COVID-19 Regulations, 2020" dated March 11, 2020 notified under EDA advising to all MNCs, IT Firms, Industries, BPO's, Corporate Offices in district Gurugram to allow its employees to work from home till March 31, 2020.

  • Guidelines to factories and establishments in the State of Haryana in respect of COVID-19

Government of Haryana vide notification dated March 17, 2020 has issued guidelines which are required to be mandatorily followed by the management of factories and establishments in the State of Haryana in the view of prevailing epidemic situation of Corona Virus Disease. The said notification imposes the following obligations upon employers in the state of Haryana:

  • Encouraging workers to stay at home if they are sick and to call State helpline no.8558893911 or 108.
  • Exploring whether they (employers) can establish flexible worksites (e.g., telecommuting) and flexible working hours (staggered shifts) to increase the physical distance among and between employees.
  • Not to insist for a medical certificate for employees who are sick with acute respiratory illness to validate illness as medical facilities may be extremely busy and may not able to 
  • provide the said certificate in a timely manner.
  • Establishing flexible policies and procedures for employees to stay at home to care for a sick family member.
  • Establishing alternate days or extra shifts to reduce the number of employees at a given time and allowing them to maintain a safe distance from one another while maintaining a full onsite work week.
  • Creches shall be specifically monitored and disinfected thoroughly.
  • Avoid biometric attendance of employees.
  • Screening of all the visitors / workers (if possible) by infra-red thermometer.

Maharashtra

  • Maharashtra Government orders private offices to go for 'work from home'

Government of Maharashtra on March 17, 2020, ordered the closure of private office spaces, religious shrines, and wedding functions for the 15 days, after fresh cases of novel coronavirus (COVID-19) were reported. Those offices involved in essential services are exempted from the order.

What is the statutory obligation of an employer in the event any employee shows symptoms of corona virus?

  • As indicated above, some of the local Municipal Corporation Acts impose certain reporting obligations upon employers in terms of any dangerous disease being suffered by any person working in their premises. The term 'dangerous disease' typically refers to cholera and any endemic, epidemic, or infectious disease by which the life of man is endangered [as defined under the Mumbai Municipal Corporation Act, 1888]. For instance, under the Delhi Municipal Corporation Act, 1957 ("DMC") any person being in charge of, or in attendance, whether as a medical practitioner or otherwise, upon any person whom he knows or has reason to believe to be suffering from a dangerous disease, or being the owner, lessee, or occupier of any building in which he knows that any such person is so suffering shall forthwith give information respecting the existence of such disease to the Municipal Health Officer.
  • Further, the Mumbai Municipal Corporation Act, 1888 ("MMC")requires that no person shall, without previous disinfection of the same, give, lend, sell, transmit or otherwise dispose of any article which he knows or has reason to know has been exposed to infection from any dangerous disease. Therefore, an employer falling within the ambit of the MMC should be mindful of disinfecting any article / premises which might have been used by an infected person.
  • With respect to the state of Karnataka, the Karnataka Municipal Corporations Act, 1976 provides that if any person knows or has been certified by the health officer or a registered medical practitioner in the service of the Government or the corporation that he is suffering from a dangerous disease he shall not engage in any occupation or carry on trade or business unless he can do so without risk of spreading the disease. Thus, these enactments impose certain obligations upon employees who may be suffering from such a disease.

In addition to the aforesaid, most of these enactments empower local commissioners to take special measures on outbreak of any dangerous disease including power to issue public notices prescribing temporary regulations to be observed in this regard. Therefore, it is advisable for employers to be vigilant with respect to notices being issued by local bodies / commissioners.

In addition to the said obligations, employers should keep a track of all the notifications being issued by governmental bodies from time to time (including those discussed above) and each of the said advisory / notification should be implemented in letter and spirit both.

Can the employer terminate services of an employee solely on the grounds of being infected with coronavirus?

Section 2(oo) of the Industrial Disputes Act, 1947 recognizes the right of an employer to terminate services of a workman on the grounds of continued ill health. However, the judicial observations made by courts from time to time have clarified that the discharge of an employee on the ground of ill-health does not constitute retrenchment unless that ill-health is "continued" and the nature of the ill-health renders the workman unfit for rendering the duties for which he was recruited.

However, Indian courts do not treat contagious and non-contagious diseases on the same footing. With respect to contagious diseases Indian courts have observed [in the case of Mx Of Bombay Indian Inhabitant vs. M/S. Zy And Another] that if an infected person (with some contagious disease which can be transmitted through the normal activities at the workplace) poses a risk to other persons working with him or to persons coming into his contact at the work place, he could be justifiably and lawfully denied employment on the ground that he is "medically unfit". Further, courts have also held [in the case of Y. and X vs. The Secretary to the Government, Transport Department, Government of Tamil Nadu and Ors.]that for the purposes of termination of services in such cases there must be specific finding that the respective employee had become unemployable due to the disease being so contagious. However, in certain cases the Courts have insisted for reinstatement of employees once the employee is cured.

Given the aforesaid, it may be advisable for employers to put such employees on leave during the period of infection, rather than straight away terminating their services. Further, employers should take into consideration that this is an extraordinary situation and therefore the likelihood of terminating such employees being construed against the principles of social welfare cannot be ruled out.

What are rights of employees and obligations of employers with respect to quarantine leaves?

Normal leaves (i.e. annual, sick and casual leaves) in course of employment is governed either by the local Shops and Establishment Act or the Factories Act, 1948, depending upon the nature of the establishment. However, the said legislations do not provide for quarantine leaves.

However, certain industry specific legislations which provide for quarantine leaves have been discussed below:

  • The Sales Promotion Employees (Conditions of Service) Act, 1976 read with the Rules framed thereunder allows up to 30 days of quarantine leave upon the recommendation of the authorized medical attendant or Public Health Officer. Further, the said Rules also provide that sales promotion employee on quarantine leave shall be treated as on duty for all purpose.
  • The 'Model Standing Orders for Industrial Establishments in Coal Mines' [Schedule IA of the of Industrial Employment (Standing Orders) Central Rules, 1946] recognizesquarantine leave. With respect to establishments where the said model standing orders have been adopted, a workman (who is prevented from attending his duty because of his coming into contact, through no fault of his own, with a person suffering from a contagious disease) is entitled to quarantine leave. The said leave shall be granted for such period as is covered by a certificate from the Medical Officer of the Mine. However, payment for the period of quarantine leave shall be at the rate of 50 percent of the wages (basic plus dearness allowance) payable to a workman. It has been further provided that quarantine leave cannot be claimed, if the workman has refused to accept during the previous three months, prophylactic treatment for the disease in question.
  • The Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955 read with the Rules framed thereunder provides that quarantine leave on full wage shall be granted by the newspaper establishment on the certificate of the authorized medical practitioner or a district public health officer or other municipal health officer of similar status, for a period not exceeding twenty-one days or, in exceptional circumstances, thirty days. Any leave necessary for quarantine purposes in excess of that period shall be adjusted against any other leave that may be due to the working journalist.

Considering that applicable laws with respect to other industries are silent in this regard, employers should rely upon the notifications and advisories being issued by central and state governments from time to time in this regard. Further, in the absence of any specific notification governing this issue, employers may consider adjusting such leaves (for quarantine purposes) against other leave entitlements of the employees in question (like sick / casual /annual leaves). However, in the event the entitled leaves have already been exhausted, employers should consider granting additional/special leaves keeping in mind the extraordinary situation in hand.

Would a differential treatment with respect to employees showing signs of infection by the employer would be construed as an act of discrimination?

The enforcement of any disability arising out of untouchability is a punishable offence under Article 17 of the Constitution. However, the Supreme Court has clarified [in the case of Indian Young Lawyers Association vs. The State Of Kerala] that treating of persons as untouchables either temporarily or otherwise for reasons relating to an epidemic or a contagious disease do no come within the purview of Article 17 of the Constitution.

Further, while dealing with the issues of discrimination (as envisaged underArticle 14 and 16 of the Constitution), the Andhra Pradesh High Court indicated [in the case of K. Gangadhar vs. A.P. State Road Transport Corporation and Ors.] that a case of differential treatment on account of a contagious disease will not amount to discrimination.

Is an employer entitled to deny employment to a candidate solely on the basis of him / her being infected with corona virus?

The Bombay High Court while dealing with a similar issue [in the case of Mx Of Bombay Indian Inhabitant vs. M/S. Zy And Another] observed that: "no person can be deprived of his right to livelihood except according to procedure established by law. Obviously, such procedure has to be just fair and reasonable. In other words, such procedure also must pass the rigour of Article 14. The rule providing that a person must be medically fit before he is employed or to be continued while in employment is, obviously, with the object of ensuring that the person is capable of or continues to be capable of performing his normal job requirements and that he does not pose a threat or health hazard to the persons or property at the workplace. The persons who are rendered incapable, due to the ailment to perform their normal job functions or who pose a risk to other persons at the work place, say like due to having infected with some contagious disease which can be transmitted through the normal activities at the workplace, can be reasonably and justifiably denied employment or discontinued from the employment in as much as such classification has an intelligible differentia which has clear nexus with the object to be achieved, viz. to ensure the capacity of such persons to perform normal job functions as also to safeguard the interests of other persons at the workplace".  In view of the said observation, it may be concluded that a candidate infected by coronavirus may be denied employment on the said ground.

Is an employer entitled to seek sickness certificate or details of illness in the event an employee applies for sick leave?

Indian Courts have often observed that an employer is entitled to know the nature and the gravity of illness being suffered by the respective employee. Further, in such cases, the Courts have been witnessed to hold that before granting medical leave and also at the time of accepting 'fitness' report, the employer has a right to know the nature of illness of the employee (in the case of Ram Roop vs. Govt. of NCT of Delhi and Ors).

Despite the aforesaid, it is important to bear in mind that seeking sickness report or any other medical certificate in the current context may be construed on a different footing. Given the epidemic situation in hand, employers should take into consideration the notification dated March 17, 2020 issued by the Government of Haryana wherein employers have been advised not to insist for a medical certificate for employees who are sick with acute respiratory illness to validate illness as medical facilities may be extremely busy and may not able to provide the said certificate in a timely manner. This should be taken as a reference point even by the employers outside the territory of Haryana.

When an employee shows symptoms of coronavirus, will seeking personal information like medical records, treatment, travel history, etc. amount to breach of employee's privacy?

In one of the landmark case [Central Public Information Officer, Supreme Court of India vs. Subhash Chandra Agarwal] wherein the Supreme Court relied upon one of its own previous judgment, observed that the medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied.
Further, there have been many cases where Courts have observed that disclosure of private information should not be construed as unwarranted invasion of privacy in the events where such disclosure is required in larger public interest. Thus, if an employer seeks personal information from an employee to curb the ill effects of the existing epidemic, the same should not be construed as breach of privacy.