As employers wake up to the reality of COVID-19, how can they minimize risks for employees and ensure business continuity? Amit Anand reports

The World Health Organization (WHO) declared the COVID-19 outbreak a pandemic in the wake of increasing cases and casualties and each country has been making every effort to cease the spread of the virus.

India has also been proactively taking steps to curb the spread of COVID-19. The government is on high alert and has been issuing orders and advisories to contain the damage. Yet with each passing day, cases of COVID-19 are increasing in India, and therefore it’s important to take steps to minimize human contact and ultimately contain its spread.

The government has invoked the Disaster Management Act, 2005 (DMA), enabling the Ministry of Health and Family Welfare and other concerned departments to take virus control measures. It is also collecting and testing random community samples to ascertain the gravity and extent of the virus’ spread.

Most of the affected states in India have declared COVID-19 an “epidemic” under the Epidemic Disease Act, 1897 (EDA). The government has already promulgated travel restrictions and suspended visas in order to minimize the exposure of India to the virus. It has also notified the quarantine rules for travellers (including for Indian nationals) coming from affected countries.

Among the above-mentioned developments, it has become important to understand the duties, obligations and rights of employers and employees to place safeguards against COVID-19. The provisions embedded in Part III, Fundamental Rights and Part IV, Directive Principles of State Policy of India, in the Constitution of India, form the basis of workplace safety and health laws in the country by imposing a duty on the state to implement policies that promote the safety and health of workers at workplaces.

[ihc-hide-content ihc_mb_type=”show” ihc_mb_who=”3″ ihc_mb_template=”2″ ]

Employer obligations

Indian statutes do not specifically describe the obligations of employers in this scenario, however, they certainly place a general obligation on employers to provide a healthy and safe workplace, and the same is evident from various provisions in the Factories Act, 1948, Industrial Employment (Standing Orders) Act, 1946, and/or various state-specific Shops and Establishment Acts and rules framed under them.

As employers are generally required to ensure the health and safety of their employees during the course of employment, they may have obligations in the wake of the COVID-19 outbreak. Employers must adhere to the advisory and orders of the central and state governments, as applicable, with respect to COVID-19 quarantine rules and any other similar requirements. They should place a restriction on business travel, business meetings, conferences, seminars and other activities that generally require employees to participate as a group. These restrictions must be either at par with, or higher than, standards set by the appropriate government.

Employers should also ensure the safety of the employee already on business travel and provide additional paid leave for such employees to self-quarantine. If any employee who has recently been on business travel and has been infected with the virus, the employee should be treated as if he/she has received an injury during the course of employment, and they must be compensated in accordance with company policy, and any applicable government orders or the Employee’s Compensation Act 1923, if applicable, whichever provides for better compensation to the employee.

Employers should allow employees to work from home in the event an employee requests for the same, or otherwise if local authorities require employers to allow employees to work from home. Most employers include remote working in their Business Continuity Plans (BCPs) and this is a situation where employers may be required to invoke their BCP and use remote working, or work from home, as an effective tool to cease the spread of COVID-19, and also to keep their employees away from human contact, taking care of their health and safety requirements.

It is also important that employers can address their concerns and protect their rights while they allow employees to work remotely. In order to safeguard the interests of the parties, the employer and employee must enter into a remote work agreement, which can specifically deal with:

(1) Obligations of the employee with respect to: (i) confidentiality; (ii) information security; (iii) infrastructure requirements (i.e., electricity, power back-up, internet connection, availability of space or home office space); (iv) safety and security of the employee while working from home; (v) prohibition on dual employment and requirement to spend a stipulated number of hours on work; (vi) usage of company assets (e.g., laptop, mobile or data card, etc.) only for official purposes; (vii) provisions for liquidated damages in the event of damage or loss of company assets owing to the negligence of the employee; (viii) adherence to timesheet rules or any e-tool to capture the attendance or monitor the work; (ix) adherence to the terms and conditions of any software, which is specifically provided to enable employees to work remotely; (x) indemnity provisions, if warranted; and (xi) consent for the image or video of home space while on video calls etc.

(2) Obligations of employers with respect to: (i) grant of appropriate access to the necessary e-tools or software for employees that are necessary for them to work remotely; (ii) handing over of the company assets required for an employee to work remotely; (iii) paying an additional allowance to meet the expenses of the employee on infrastructure requirements (e.g., electricity, power back-up, internet connection, availability of space or home office space).

(3) Disclaimers from employers with respect to: (i) safety/security of the employees while working from home; (ii) qualifying home as a workplace for limited purposes and any surveillance of home office as may have been done by any installed software/e-tool etc.; (iii) liability as an employer; and (iv) warranty and representation as an employer.

(4) Necessary consent from the employee with respect to applicable privacy laws and other similar legislations.

In addition, some employers in India may be required to comply with some of the regulatory requirements before allowing their employees to work from home.

For example, in order to perform certain categories of services remotely, employers would need to seek the approvals of the Department of Telecommunications and provide a bank guarantee for making use of a work from home facility under the Other Service Provider category.

For employers operating from special economic zones (SEZs) and software technology parks of India (STPIs), additional approvals may be required. Recently, in the wake of COVID-19, the Department of Telecommunications, via a notification, has decided to allow employees operating from SEZs and STPIs to work from home until 30 April 2020.

Minimizing risks

Employers may create an additional leave category for employees requiring self-quarantine for any employee who may have been infected with COVID-19, even on account of personal travel. Some state governments have already mandated the grant of additional leave for those employees who have been infected, or who are suspected of being infected with, COVID-19, and require self-quarantine.

Employers should allow employees unpaid leave if they are not allowed to work remotely and find it stressful to commute to work due to the fear of infection. The Maternity Benefit (Amendment) Act, 2017, and its rules require employers to provide a crèche facility, however, some employers have chosen to allow women employees to enrol their kids in third-party crèche facilities, either on a subsidized cost or on a reimbursement of cost basis.

In order to cease the spread of COVID-19, most state governments have ordered the temporary closure of schools and crèche facilities, or in some cases these facilities are being closed as a preventive measure, so it becomes necessary for employers to allow such women employees (who may have enrolled children into a crèche facility) to either work from home, or to offer them paid leave until normality is restored.

Employers must sanitize the workplace, transport facilities, vehicles, crèche facility and other company owned/leased premises, share “Dos and Don’ts” with employees to contain the spread of COVID-19, and provide sanitizers to help employees wash hands regularly. Facilities like canteens/cafeterias must be kept under a strict vigil to check any hygiene issues that may arise.

Employers are required to maintain the general health of their employees at work and, therefore, screening facilities may be installed/enabled to identify any infected employees and to check the spread of COVID-19 infection among other employees.

It is anticipated that, while employers meet the above-mentioned obligations and enable flexible working arrangements for employees, there may be an impact on the services provided to customers. In order to minimize such an impact, employers or service providers are required to test their BCPs at regular intervals, and that will prepare employers or service providers to stay alert in the event of situations like COVID-19. In the worst scenarios, where it becomes difficult for service providers to provide services to customers, service providers may choose to invoke a force majeure clause to deal with their contractual obligations, subject to the agreement arrived between parties to the contract on the force majeure clause.

The outbreak of COVID-19 is bound to impact human lives, businesses, deliveries and services, etc. But certainly, once it is over, there will be abundant lessons for the world community, and that will help people, organizations and governments to better handle any future pandemic.

Amit Anand is a senior corporate counsel at Japanese IT services organization NTT DATA.

Testing times

What are the key workforce challenges that will arise due to COVID-19 and how should they be managed? Preetha S, Ajay Singh Solanki and Vikram Shroff report

The impact of the novel coronavirus COVID-19 at the workplace is imminent. While we do not know the extent of the impact, one thing is abundantly clear – the workplace will never be the same again.

The authorities, both at a national and state level, have been proactive in adopting extensive protective measures to contain the spread of COVID-19. The next few weeks will be critical for India. In the interim, the pandemic has made it imperative for employers to adopt unique measures to protect their businesses while combating the operational and workplace challenges that the situation poses.

Employers have the primary obligation and responsibility to provide employees with a safe and healthy workplace. The law on occupational health and safety originates from the Constitution of India. The Directive Principles of State Policy, which are fundamental in the governance of the country, envisage securing the health and safety of employees, and providing just and humane conditions of work.

Labour laws such as the Factories Act, 1948, Industrial Employment (Standing Orders) Act, the state-specific shops and commercial establishments acts, as well as industry-specific labour laws, contain employee health and safety provisions. The proposed Occupational Safety, Health and Working Conditions Code, 2019, also seeks to provide for a consolidated law on the health and safety of workers.

In response to the COVID-19 outbreak, employers have been exploring proactive steps to limit contact between their employees. Examples include adjusting work hours, exploring part-time arrangements, limiting the number of employees present at work on any particular day, implementing shift rotations, and separating lunch and rest breaks over interval periods.

Workplace monitoring

Employees’ health and medical records are “sensitive personal data or information” (SPDI) under the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011. Accordingly, employers should comply with necessary requirements for the collection, usage, disclosure and transfer of any employee’s SPDI.

These provisions may also need to be complied with, for example, while recording the body temperature of an employee entering the workplace. Certain local municipal authorities may also require the employer to notify the authorities of a dangerous disease detected in an employee. Employers should fully cooperate with such mandates to help contain COVID-19, since it is highly contagious.

Another challenge faced by employers is the need to curtail business travel, given the risk of exposure. India has already imposed travel restrictions and, starting on 22 March, the government has barred entry to international commercial passenger aircraft coming from abroad for the time being.

Quarantine and self-isolation requirements have also been enforced. While employers may not bar employees from personal travel, they can require those who undertake travel, especially to high-risk areas, to report the same, and also require such returning travellers to self-quarantine themselves on return.

To contain the spread of the virus, several state governments have issued temporary lockdown orders, allowing only essential services to be kept operational. In such a situation, only those business operations that have been listed as “essential services” under the respective state orders can be kept open, subject to conditions mentioned in the lockdown orders.

Telecommuting in lockdown

Telecommuting is no longer a buzzword – it is the need of the hour. Accordingly, employers have no choice but to encourage and facilitate work from home, which may not necessarily work well for many businesses or roles. Employers may also not have the necessary digital infrastructure, technological capabilities, security and privacy protocols to enable work-from-home arrangements, and those companies that do can expect them to be truly tested in the coming times.

Labour laws (including the state-specific shops and establishments acts) do not specifically regulate work from home arrangements, except for maternity purposes. To that extent, legally speaking, it remains largely a matter of contract between the employer and its employees. However, in the absence of a remote work policy, both employers and employees may face practical challenges in successfully implementing such measures.

Productivity may also be significantly affected. Employers may need to develop and/or update their existing work from home policy and telecommuting agreements. Due to COVID-19, some authorities, including the Software Technology Parks of India, the Department of Telecommunications and the Ministry of Corporate Affairs have also issued notifications to eliminate restrictions and facilitate work from home.

Leave, pay cuts and layoffs

Karnataka was the first Indian state to mandate employers to provide 28 days of paid leave to employees diagnosed positive with COVID-19. Meanwhile, employers are already exploring options to reduce their wage costs.

The wages of a workman are a protected service condition under labour laws. Any proposed reduction may require 21 days’ prior notice in the prescribed format to the affected workmen (non-managers) along with a copy to the labour authorities. There may also be a requirement to amend the employment contract, for which employee consent would be required.

Indian labour laws also protect employees from illegal or wrongful termination, or in cases of unfair labour practices on the part of the employer in the absence of an at-will employment system. As a result of COVID-19, certain state governments have also issued advisories that employers should not cut wages or terminate employment, if they are unable to report to work, especially due to lockdown orders. This is consistent with the prime minister’s recent speech to the nation.

In these testing and unprecedented times, the need of the hour is for employers to think out-of-the-box and adopt proactive measures to strike a fair balance between the legitimate interests of the employers, and health and safety of the employees so as to ensure the interests of both parties are not jeopardized.

We are all in this together. Let us hope that this experience helps organizations eventually change their mindset from “me” and “you” to “us”.

Preetha S and Ajay Singh Solanki are leaders at the HR law practice of Nishith Desai Associates, and Vikram Shroff is the head of the HR law practice.

[/ihc-hide-content]