By - Gyanendra Mishra , Co-Founder & Senior Managing Partner , Atharva Legal LLP

The world is currently under the cruel grip of Covid-19, which is now a global pandemic and already causing severe economic and financial crisis across global industrial sector. In these unprecedented times, many law firms are facing queries from respective clients regarding the various legalities of government notifications / advisories issued pertaining to employment and labour sectors. This article attempts to navigate through the nuances of these documents, and of the new and upcoming concerns that are now being raised in light of the pandemic. 

The key points that emerge through the relevant government notification/advisories are;

• The employers should not terminate employment, particularly for casual or contractual employees, or reduce their wages;
• If any employee takes leave(s) because of the lock down or related reasons, he/she should be deemed to be on duty without any consequential deduction in wages; 
• The employees should be allowed to work from home as much as possible:
• If for some valid and unavoidable circumstances employees are not able to work from home, they should be treated as on duty, and
• If the place of employment is non-operational, the employees would be deemed to be on duty.

 Enlisted below are our responses to some of the real time queries that have been raised by our clients during the lock down period:

Q. Is the closure of the establishment due to lock down akin to and be treated as declaration of holidays by the employer?

Ans: No. Both are not the one and the same. Lock down does not mean the closure of operation of the establishment. The companies can ask the employees to be on call and work from home wherever it is possible. Also, as they work from home, the employees cannot seek any additional payment and it will be treated as normal performance of duty.

Q. If an employee is to go for self-quarantine because of the reason of his official duty, how should this be treated?

Ans. This period should be treated as the paid leave.

Can any employment be terminated during the lock down for misconduct?

Ans: Employment can be terminated for committing serious misconduct as there is no bar for such termination in the government advisory/ notification. However, the principal of natural justice as well as all the standard procedures of the organization have to be followed before taking any such action.

Q. Can the fixed term employment not be renewed/ terminated if the term of employment is expiring/ending during the lock down?  

Ans: The employee is entitled to not to renew the fixed term employment as per the employment agreement, if there is no further requirement for the renewal of the fixed term employment. However, all the formalities like notice period, severance payment etc. as agreed must be followed. If the employee is not able to return the company’s properties, he/she should be given time to return the same post the lock down and any Full & Final settlements should not be put on hold for this reason. 

Q. If an employee refuses to work from home during the lock down period, without any reasonable cause, while all other employees are working from home, can the employer take disciplinary action against such employee?

Ans: Yes, in such a scenario, the employer can take disciplinary action. However, it is critical to ascertain that there is no valid or reasonable cause that makes the working from home impossible or impractical for that employee. Also, the consequences of not working from home must be clearly communicated to the employee concerned before taking any disciplinary action. 

Q. What is to be done in a case where an employee is already on leave and seeks the extension of the same due to lock down?

Ans: The employer can ask the employee to resume work and ask to work from home, if the employee is seeking the extension of leave only because of the lock down. However, if the employee is not in a position to work from home owing to valid and unavoidable circumstances, the extension of leave should be granted to the employee.  Also, the employee cannot be asked to report to the work-place unless it is related to essential services. 

Q. There are various time lines to be adhered to, concerning the conduct and completion of an enquiry in case of a sexual harassment complaint at the work place as per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013? How to deal with same during the lock down?

Ans: The enquiry should be completed in accordance with the time line prescribed under the law to the fullest extent possible. However, if strict adherence to the statutory time line is not possible for some unavoidable reason during lock down, the same should not be treated as non- compliance provided that the concerned enquiry is completed  as speedily as possible with an attempt at exhausting all means available including the virtual one.

Q. Is the employer obligated to pay compensation to the employee infected by Covid-19 Virus?

Ans: Under Indian law, the employer is obligated to pay compensation to the employees, in case of injury (including partial or total disablement) or death. However, it requires that the same is caused due to accidents arising out of or in the due course of employment. Accordingly, if it can be demonstrated that COVID-19 infection was contracted in the course of employment or it arose out of employment, the employer shall be legally obligated to pay compensation to impacted employees. Each case has to be examined on its own facts keeping in mind factors such as type of employment, the nature of the employee’s work, and the circumstances in which the injury/death/infection was caused.

Q. How to deal with the issues of office travel and the employee in transit?

Ans: The Government has announced some relaxation in lockdown measures to allow foreign nationals stranded in India and release those who came from abroad but have been placed under quarantine.

In a standard operating procedure (SOP), MHA said, "Requests received from foreign governments, for evacuation of their nationals from India, would be examined by the Ministry of External Affairs (MEA), Government of India on case to case basis."

"Prior to departure, the foreign national would be screened for COVID 19 symptoms as per the standard health protocol. Only these foreign national would be allowed to leave, who are asymptomatic for COVlD-19. In case of symptomatic person, the future course of treatment would be followed, as per the standard health protocol. The local transportation arrangements from the place of stay of the foreign national to the point of embarkation would be arranged by the local embassy or consulate of the respective foreign government,”  It further provides that the transit pass for movement of the vehicle (deployed for movement of foreign nationals) would be issued by the Government of the State and Union Territory where the foreign nationals are staying. The chartered flight would be arranged by the concerned foreign government in consultation with the Ministry of Civil Aviation". For persons returning from foreign locations and under quarantine, only those testing negative for COVID 19 would be released from the concerned quarantine facility. However, this will not apply to a group, where even one person tests positive for COVID 19. The notification further states that those released should make their own transport arrangements. "The transit pass for movement of vehicle(s), being used by such person(s), would be issued by the Government of the State/Union Territory where they have been quarantined." The transit pass will be issued for fixed route(s) and with specified validity and such person shall follow the same.

"As a measure of abundant caution, upon returning to their destination such persons would home quarantine themselves for a further period of 14 days as per standard protocol on the matter. Details of person released from quarantine, along with their destination, will be shared with the concerned State government for necessarily follow up.” MHA has said. The Indian employer should provide all the necessary help and support in this process.

Q. Can the employer reduce/ cut the wages given the financial constraints due to the lock down?

Ans: The government has issued clear advisory not to reduce or cut the wages of employees during the period of lock down and also to ensure the timely release of salary of the employees. However, if there is serious financial constraint faced by any particular employer, it can certainly engage with its employees to mutually agree to some pay cut/ deferred payment. However, it should be ensured that there is no threat or coercion to the employees to agree to any such measures. Furthermore, as per the provisions of the Industrial Dispute Act, 1947, the employer can only reduce the wages of workers either by way of mutual settlement or giving 21 days advance notice in the prescribed format to the impacted employees with the copy of the same to be sent to the concerned labour office.

"The article is a general write up on the subject and should not be considered as a legal opinion by the author. Also the same is based on the latest information available at the time of the write-up."

This article was published at Lawyered on 02 May 2020. https://www.lawyered.in/legal-disrupt/articles/employment-law-atharva-legal-llp/