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Covid-19: Legal considerations for employers of establishments in India

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published on 24 April 2020 | reading time approx. 3 minutes

  

​Against the backdrop of Covid-19, being declared as a Pandemic globally, the Indian Government has also proactively taken several measures to combat this pandemic and mitigate its impact. The nation-wide Lockdown of all States in India, which now stands extended until 3 May 2020 is seen as a much needed step to control this pandemic from spreading across the length and breadth of the country.

  

  
It is against this backdrop, that employers of commercial establishments would need to be mindful of certain factors in relation to the ongoing operations and treatment of their employees.  

 

Essential and Non-Eessential services

As a first and foremost step, it is important to check if the line of service of the concerned establishment qualifies as “Essential” or “Non-Essential”. For this, notifications of Ministry of Home Affairs dated 24 March 2020 and the updated notification dated 15 April 2020 should be immediately referred to. 
 
In terms of the Notification dated 15 April 2020, certain additional services/categories would be allowed to operate post 20 April 2020 and subject to compliance with necessary operating procedures set out in the Notification along with State Guidelines as and when the same are notified.
 
On a broader perspective, essential services which may be allowed to operate (during this time of Lockdown) include health care related services, agricultural and related activities, fisheries, plantations, manufacturing of essential services facilities, animal husbandry, certain sections of financial sectors, public utilities such as electricity, postal, water, commercial establishments such as print and electronic media, IT enabled services (with 50 per cent strength), courier services, cold storage, warehousing services.
 
The present situation is constantly evolving and hence it is relevant to keep a track proactively on the notifications being issued from time to time. 
 
In view of the above, several establishments which do not qualify under essential service category are presently operating on a work from home model for their employees. Therefore, we provide herein below some key points for employers to be mindful of while adopting this work from home model.
 

Home offices: legal and regulatory guidelines

In India, at present, there are no specific guidelines/legislations pertaining to Work From Home. It is therefore imperative to take note of certain key points provided below which have been derived based on existing legal framework, State and Central Advisories and Notifications issued from time to time: 

  1. Abiding by terms and conditions of employment: The regular norms of employment, terms and conditions, such as working hours, policy on overtime etc., should be adhered to. Any changes, to be effected, should to the extent possible be taken after consultation with appropriate employees and should be well documented.
  2. Leave Policy: Several State Government advisories have been issued which indicate that the period of Lockdown should be assumed as employees being “on duty” and salaries should be disbursed accordingly. While the advisory does not in effect assume force of law, it is advisable to comply with the same.
  3. Termination of Employment: In line with the State Guidelines, any kind of termination of employment of an employee who has contracted Covid-19 should be strictly refrained from. As general advisory, termination of employment during subsistence of the lockdown period should be avoided.
     
    However, should there be any specific reasons triggering termination, the terms of employment contract should be complied with, including compliance with notice period requirement, payment of all dues including entitlement such as gratuity obligations, leave encashment.
     
    In the case of workmen category of employees, specific compliance with additional requirements set out in Industrial Disputes Act, 1947 and other relevant laws, including intimation to appropriate authorities should be made.
     
    Having stated the above, the employers should be mindful that, in the event of a potential dispute scenario, on wrongful termination of employment during present times, courts are likely to rule in favour of employees.  
  4. Insurance Cover: In relation to the existing insurance policies of the companies for employees, it is advisable to seek proper consultation from insurance agents to incorporate incidents of accidents etc. arising out of home offices, while the employee is on duty. This would however need to be examined on a case by case basis. It is also advisable to take group insurance cover for employees with specific coverage for pandemics such as Covid-19.
  5. Data Protection: It is critical to ensure that adequate data protection policies are in place. In the event of sharing medical information of employee (including travel history/reports of Covid examination) prior consent and intimation to concerned employee in terms of Data Protection Laws of India should be sought.
  6. Confidential Data Sharing with Employees: Another area which requires specific attention is where confidential data is being accessed by employees from their home offices. Specific safeguards should be in place in this aspect as well including updating privacy policy of the organisation, sensitising employees of the same, to the extent possible supplying data in encrypted form and also ensuring that all video conferencing services used by employees are safe and do not lead to data breach/security gaps.
     

Summary

The pandemic has resulted in organizations having to revisit their existing work models to adapt to a dynamic reality which seems to pose a challenge and is growing due to the prevalent uncertainty of an end of the lockdown. Employees form the key strength of any organisation and their well-being should be of utmost priority to all organisations. Having said so, it is advisable to be abreast of the notifications including relaxations being issued by the Government from time to time. There is no straight jacket formula to deal with this sensitive issue of employer-employee relation and therefore issues should be addressed on a case by case basis.

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