1. INTRODUCTION

COVID-19 is a new addition to the dictionaries and, is probably, one of the most abhorred term of the recent times. Post the outbreak of this pandemic, the (Indian) Central Government as well as all the States and Unions Territories have issued regulations (under the Epidemics Diseases Act, 1897), orders, directions and notifications to manage and contain COVID-19 including casting obligations on establishments, factories, citizens and residents of India, among others.

Several advisories, directions, orders, and notifications while dealing with the measures, regarding containment of COVID-19, have made reference to work from home being allowed, paid leaves being granted, to employees and workers, employed or engaged by private employers, besides continuity of payment of wages to them, among others. It has been apparent that nations, and employers, were not prepared to deal with such an unusual challenge, which has led to closure of establishments and factories (other than as exempted or permitted), causing severe financial and operational distress to employers (as well as nations).

While steps are being taken to address the COVID-19 situation, and hopefully, establishments and factories will return to business soon, it would be prudent that employers, while dealing with the crisis in hand, may want to prepare for the future operational aspects, considering the prevailing labour and employment laws and other applicable laws.

COVID-19 is a situation that has affected nations which in result had a bearing on the business establishments, however, it is also possible that if an employee(s), upon return to the workplace, carried an infection and infected other co-workers, then such a situation may also have an impact on an individual business establishment. Therefore, it is important that employers should start considering the need of introducing certain policies that could minimize the exposure or risk, if not completely eradicate it.

2. SOME ASPECTS FOR CONSIDERATION

2.1. Travel

Employers may want to consider including provisions in their official travel policy that requires an employee to undergo a medical-test(s), if a person visited a country, area or region which was affected by a particular disease especially a communicable disease or is known for a communicable disease.

Employers may also want to retain a provision, even to cover a situation, wherein an employee on a personal travel or holiday, visited a country, area or region which was affected or is known for certain communicable disease(s).

Since in some cases, symptoms may surface after a while, the employer want to retain the right to ask an employee to undergo a medical test, even after a certain period.

Employers may also want to examine, if not already done, the aspects of pre-departure vaccinations to an employee, depending upon the health advisory of a foreign or local jurisdiction. Such an aspect, and costs associated therewith, may also be part of a contract that an Indian employer may enter into with an overseas customer or party.

2.2. Hygiene at Workplace

Employers may want to encourage employees to ensure good hygiene at workplace and follow safety protocols at all times, even in industries wherein such a statutory or regulatory requirement does not exist. It would be important to inculcate the habit of sanitizing workstations, personal items and common meeting areas including conference rooms, among others.

Employers may want to propagate the message, using different mediums, expecting employees to observe hygiene at workplace and initially use soft skills to ensure that the employees attribute importance to such aspects.

Such a requirement may also be extended to vendor employees.

2.3. Insurance

Employers may want to start carefully examining the insurance policies including the health policies (wherever voluntarily extended to employees), to ensure that the policies cover unknown situations such as exposure of other employees due to being in contact with an infected person or visitor and also wider provisions covering in the natural calamity or man-made disaster and not excluding them.

Generally, insurance policies are detailed, therefore, understanding of every provision is important and it may be advisable for the employers to seek assistance from the experts in correctly interpreting the provision of a policy.

2.4. Medical History

Employers may want to examine the possibility of seeking a disclosure, without breaching the provision of relevant laws, about the medical history, especially regarding communicable disease(s), old or current, of an employee and up-dation of such a disclosure, during the term of employment. It should be ensured that such a disclosure or information, is sought with the consent of employees, and does not violate any laws especially privacy laws, among others.

Employers may also want to include a provision, in a contract with a vendor, suppling workforce, wherein vendor may be expected to provide similar disclosure of its employees besides expecting vendor to ensure compliance when a vendor employee may be expected to undergo a medical test(s) in specified circumstances.

2.5. Exigency Plans

Work from home directions, wherever feasible, has given an impetus to the need of thinking and being prepared with the measures, to be adopted by employers including infrastructure needs, which will keep employers prepared, to deal with adverse situations, if they ever occur. This may also mean preparing policies to ensure that an employee efficiently works from home, among other things.

2.6. Travel Desks

With regard to large establishments, where several employees travel within the country or overseas, employers may want the travel desk officials to also keep checking about the health advisories, if not already practiced, about health situations in a jurisdiction, as may be publicly available, and share them with the concerned employees and/or relevant company officials.

2.7. Confidentiality

Needless to say, any changes to the policies or any addition thereto may require the need of stricter confidentiality obligations, involving employees or any vendor, who would receive any information, pertaining to employees or operations of an employer, therefore, it may be appropriate for the employers to draft or revise (existing provisions) that deal with such an aspect.

3. INDUSLAW VIEW

It may be prudent for employers to start looking at the business aspects, post emergence from COVID-19 situation. Several relevant Indian labour and employment laws such as shops and establishments acts and the Factories Act, 1948 have laid obligations on the employer to provide a safe workplace to the employees.

However, COVID-19 has provided the need for the amendment of statutes, to ensure that the employees also understand the need of observing hygiene at work-place and being held accountable if they breach such an obligation.

It is possible that lawmakers pay attention to several new but crucial aspects that COVID-19 has brought up and make appropriate amendments to existing laws or introduce new laws. However, until it happens, it would be up to the employers to draft and introduce policies, consistent with applicable laws. Employers should consult their legal counsel to develop policies to address their future business needs or practices, consistent with applicable laws.

With regard to COVID-19, it is possible that the industry associations may demand suitable changes in labour and employment statutes, seeking exemption for industries from making payments of wages or right to terminate employees with minimal or no-payment of compensation, right to furlough, among others., if a condition persists beyond a particular time, or in any such similar situation. However, given that India is a democracy, it is possible that any changes in law may take their own time.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.