Coronavirus lockdown: What are the implications for Indian employers

The Novel Coronavirus (COVID-19) has affected almost every country in the world and India is no exception. To control the spread, the Indian government has imposed a mandatory countrywide lockdown from March 24, 2020 until April 14, 2020.

Only establishments and workplaces that provide essential services can continue operations, subject to adopting necessary measures to contain COVID-19.

This update discusses the impact of the lockdown and important measures that employers should consider in ensuring the health and safety of their employees.

Also Read: Coronavirus: Companies assure employees of no layoffs as businesses take a hit

Mandatory lockdown of workplaces

The Indian government's order directs all commercial establishments, private offices, industrial establishments and factories to remain closed for twenty-one (21) days starting on March 24, 2020. However, this order is not applicable to certain categories of workplaces, including inter alia:

• Hospitals and medical establishments, including their manufacturing and distribution units, chemists and medical equipment shops
• Banks and insurance companies
• Establishments providing telecommunication, internet, broadcasting and cable services
• Establishments providing information technology (IT) and IT-enabled services to essential service providers
• Print and electronic media
• Cold storage and warehousing service providers
• Capital and debt market services, and
• Factories manufacturing essential commodities

In addition, factories which require continuous processing may be operated subject to prior state government approval.

Given this situation, it is imperative for all companies to assess if they come under the list of exempted workplaces notified by the Indian government in order to continue normal operations.

Practically speaking, several businesses may not squarely come under the exempted categories, but could still be considered to be a crucial supplier or support service for an essential service provider.

In this case, it may be helpful for companies to engage in a discussion with the concerned state government and check if they can continue their operations.

Also Read: Coronavirus insurance covers to be withdrawn if cases spike

Mitigating measures to be adopted by employers exempt from lockdown

Workplaces that provide essential services and are exempt from the lockdown have to adopt certain measures to contain COVID-19. These workplaces also have to comply with any directions that may be issued by the jurisdictional health department. In this regard, certain key points should be borne in mind.

1. Travel restrictions: The order issued by the Indian government provides that personnel engaged in providing essential services will be permitted to use public transport. If employees are using public transport to travel to work, they may be asked to show proof indicating that they are employed with an essential service provider. To this end, an employer can consider issuing a letter to all its employees stating that it is an essential service provider and the employees are, therefore, permitted to attend the workplace.
2. Flexible workplace: To the extent possible, the employer should rotate its staff, reduce the number of people who need to be in the office, and try to implement a "work from home" policy for those employees who can manage their duties remotely. Also, if any employee expresses concern in attending the office, the employer should try and mitigate the employee's concern, failing which the employee should be permitted to work from home, if possible.  
3. Health and safety measures: Employers should inform employees of the best hygienic practices (such as washing their hands for 20 seconds and building immunity by adopting a healthy lifestyle) and also encourage them to seek COVID-19 information from reliable sources like the government or the World Health Organisation's (WHO) website. Employees should be advised not to pay heed to informal communications, which often contain misleading information and can lead to unnecessary panic. Further, employers should temporarily discontinue biometric attendance systems and sanitise workspaces on a regular basis. Employers must ask employees to get a check-up if they or any family members show any symptoms of COVID-19 and require such employees to self-isolate. If possible, employers should regularly screen employees using infrared thermometers.
4. Group health insurance: As a best practice, if they do not have one in place already, employers should obtain a good health insurance cover for their employees on an urgent basis.
5. Leave: Employees should be instructed not to attend the office if they show any symptoms of COVID-19 or are otherwise unwell. Employers should provide paid leave to employees suffering from COVID-19 symptoms without insisting on medical certificates, as getting these from doctors or hospitals can be time-consuming. This facility should also be extended to employees who are in self-quarantine, which is mandated by the government authorities. COVID-19 leave or quarantine leave can form a part of an employee's available annual or sick leave as per the existing leave policy.
6. Reporting obligations: If an employer comes to know that any employee is suffering from COVID-19 symptoms and is refusing to self-isolate or seek medical help, the employer should use its best efforts to prevent such employees from coming in contact with other employees, and must immediately report the employee to the relevant government authority.

Key issues for employers who are not exempt from lockdown

Set out below are a few key points to be noted by employers who are not providing essential services, and may or may not be able to continue operations from home.

• Availability of resources: Organisations that are required to work remotely should ensure that employees have adequate access to cloud servers and teleconferencing or videoconferencing facilities.
• Termination of employment: In view of the COVID-19 outbreak, The Ministry of Labour and Employment issued a notification on March 20, 2020, advising all employers to refrain from terminating the employment or deducting wages of their employees (including casual and contract workers). The notification mentions that even if a place of employment is non-operational, the employees would be deemed to be on duty. Certain state governments have also issued similar advisories. Given this, it may be difficult for employers to retrench or let go of employees or deduct their wages, and in case of wrongful termination claims by employees, courts will surely rule in favour of the employees. Having said so, if an employee is suspected of suffering from COVID-19, the employer can deny employment or defer the joining date of such an employee, primarily, to protect other employees from the infection. Irrespective of the foregoing, these are trying times, and employers should deal with these matters sensitively and after seeking legal counsel.
• Cybersecurity: For organisations working remotely, employers should ensure that robust cyber security measures are in place to avoid phishing of confidential information.  Employers should ensure that all office computers and laptops (as well as the personal equipment of employees) have adequate anti-virus and malware protection and secure access to office systems and servers.  Employers should inform employees to be cognizant of phishing e-mails and should set up an alternate communications network in case the office network is compromised.

Data privacy considerations

While employers should take the necessary steps to identify employees who are suffering from or who may be infected by COVID-19 by seeking information in relation to their travel history and health data, they should ensure strict confidentiality and adhere to the provisions of the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, which deal with the processing of sensitive personal data (including health data).

Having said so, if an employer seeks personal health-related information of an employee, especially in the wake of a declared pandemic and in the public interest, there is a strong likelihood that it may not be construed as a breach of privacy.

(The author is Partner, Majmudar & Partners, International lawyers)