- 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.
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.
What are the key advisories/notifications issued by the state government which the employers should be mindful of?
- Karnataka Government issues Advisory for IT/BT company employees and staff
- Paid leave for employees infected by corona virus in the state of Karnataka
[Section 15: Annual leave with wages
- 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.
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.
- Maharashtra Government orders private offices to go for ‘work from home’
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.
Can the employer terminate services of an employee solely on the grounds of being infected with coronavirus?
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.
What are rights of employees and obligations of employers with respect to 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.
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.
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 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.
Is an employer entitled to deny employment to a candidate solely on the basis of him / her being infected with corona virus?
Is an employer entitled to seek sickness certificate or details of illness in the event an employee applies for sick leave?
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.
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.