Final year MBBS students, resident doctors and nursing students who may be pressed into service for COVID care in hospitals at the behest of the Centre may be eligible only for a stipend and not minimum wages as part of their incentives, according to lawyers.
The Prime Minister's Office had announced a slew of measures, such as postponing NEET-PG exams by at least four months to make a large number of qualified doctors available for pandemic duty, pressing medical interns into service, and involving BSc or GNM qualified nurses in full-time COVID nursing duties to reduce the burden on healthcare professionals as the second wave of the pandemic has battered the already weak medical infrastructure.
As health is a state subject, a day later the Himachal Pradesh government announced that fourth and fifth year MBBS students, contractual doctors, and junior and residents will be given an incentive of Rs 3,000 per month. Besides this, nursing students, contractual laboratory staff and GNM third-year students will be given Rs 1,500 per month for working at COVID care facilities at medical colleges and hospitals.
This amounts to Rs 100 per day for medical students and Rs 50 per day for nursing students for full-day duties at a COVID ward. In comparison, an unskilled daily wage earner earns an average of more than Rs 200 per day under the Mahatma Gandhi National Rural Employment Guarantee Act. The amount varies across states, with a nominal increase notified by the Ministry of Rural Development every year.
"The Minimum Wages Act applies to employees who are working with the hospital under an agreement or have an appointment letter, etc. But these medical professionals may not be recruited in that sense. They may neither be permanent nor temporary workers, just emergency workers. So, hospitals are under no obligation to abide by the Minimum Wages Act insofar as recruiting them in this situation is concerned," said Business Law Chamber partner Avnish Pandey. He said what they will get paid may be like a stipend.
"These interns undergo unpaid training at hospitals as a requirement to complete their course. The government has chosen to incentivise them through a stipend of Rs 3,000 a month. This is not wages paid to a doctor, as these are students who have to mandatorily undergo practical training and are doing so to get a medical degree," said BC Prabhakar, advocate and chairman, BCP Associates.
The Centre's announcements have not gone down well with medical students, with Karnataka Association of Resident Doctors releasing a video criticising the Centre's announcements saying it will only make lives difficult for residents who have prepared for these exams for several years, and that the government should offer better pay and risk incentives for this service.
"The Disaster Management Act expressly says its provisions will override all other acts, including Minimum Wages Act. So, the government is well within its right and duty-bound to marshall all resources like students, paramedics, and whoever else is available," said Mathews J Nedumpara, lawyer, president of National Lawyers' Campaign for Judicial Transparency and Reform.
The Ministry of Home Affairs invoked this emergency law on April 22 to ensure easy transport of medical oxygen across borders as several states complained of restrictions even as the country is battling a serious supply crunch.
Nedumpara, however, added that the rule doesn't mean that doctors should be denied facilities and payment. "Actually, they should be paid more because it is a risky job -- they are exposing themselves to the pandemic. The students can appeal to the government."
The Supreme Court has upheld similar bonds in the past where doctors have been asked to serve compulsory rural postings, AP Singh, partner at law firm MV Kini, said. "It is a settled law that doctors are not 'workman' under Industrial Disputes Act. And making this a part of the study curriculum for nursing staff will not have any labour law implications for the employers."
In its announcement on May 3, the PMO had said the services of final year PG students (broad as well as super-specialties) as residents may continue to be utilised until fresh batches of PG students have joined.
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