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INTRODUCTION

A global pandemic now, COVID-19 was not something the world seemed to have been ready for when it was first discovered in Wuhan, China, in December 2019. A member of the larger family of coronavirus (including Middle East Respiratory Syndrome (MERS) and Severe Acute Respiratory Syndrome (SARS)) which causes illness in both humans and animals, COVID-19 impacts the respiratory system of its target. Having the capability to spread from person to person through droplets from mouth or nose, COVID-19 has transmitted far and beyond, with 93,090 confirmed cases across the world as per the situation report released by World Health Organization (WHO) on 4 March 2020. WHO has declared COVID-19 as a public health emergency of international concern.

With the number of confirmed cases increasing globally each passing day, there is an urgent need to track the spread of the virus and take necessary precautions. In this regard, employers constitute an important stakeholder, and there is a pressing need to monitor, prevent and manage all suspected and confirmed cases in the workplace, both cautiously and sensitively.

In this Q&A, we discuss certain measures which may be assessed and considered by employers in order to effectively manage their workplace in view of the outbreak.

What is the present situation of COVID-19 outbreak in India? Has the Government of India taken any measures or issued any guidelines to prevent and contain the outbreak? 

India has reported 30 confirmed cases of COVID-19 as on 5 March 2020 (2 PM). The number is likely to increase in the coming days. In this regard, certain measures taken by the Indian government are set out below:

§  Thermal screening is being undertaken at all international airports across India for travelers arriving from China, Thailand, Singapore, Japan, South Korea, Hong Kong, Malaysia, Indonesia, Vietnam and Nepal.  

§  India has temporarily suspended visa on arrival / e-visa for nationals of Japan, China, Iran, Italy and South Korea and has cancelled all flight operations from China, Hong Kong and Iran and has reduced the number of flights to Singapore.

§  Indian citizens have been advised to refrain from traveling to China, Iran, Republic of Korea and Italy and advised to avoid non-essential travel to other COVID-I9 affected countries.

§  Passengers of international flights entering into India from any port are mandated to furnish duly filled self-declaration form, inter alia indicating travel history, to health officials and immigration officials at all ports.

In addition to the above, employers should constantly monitor the travel advisories being issued by the Ministry of Health and Family Welfare, Government of India (Ministry).

Among states, Karnataka has issued guidelines on measures that should be adopted by employers to ensure safety at the workplace. While we have been unable to locate the guidelines on the government’s Health Department website, few important measures set out in these guidelines as per news websites (The Economic Times, Hindu Business Line etc.) are as follows:

§  Employees having flu-like symptoms may be allowed to work from home with the recommendation of following standard hygiene practices including cough etiquette;

§  Employees arriving directly or indirectly from China, South Korea, Japan, Iran, Italy, Hong Kong, Maccau, Veitnam, Malaysia, Indonesia, Nepal, Thailand, Singapore, Taiwan, the UAE and Qatar should undergo medical screening at the relevant airport entry.

§  Employees arriving in India through any international flight should furnish duly filled self-declaration form providing personal particulars (phone numbers and address) and travel history to the concerned officials.

§  Employers should promote regular and thorough hand washing at workplaces and keep sanitising hand-rub dispensers (alcohol-based) in prominent places.

§  Employers should ensure availability of surgical masks and paper tissues at workplaces (especially for those who have a running nose or cough) along with closed bins for disposal thereof.

Which is the most reliable source of information on COVID-19 that may be used for sensitizing the employees?

At the international level, WHO has issued several advisories on COVID-19. In India, as discussed above, the Ministry has taken a lead on advising the general public on travel to and from other countries through several press releases. Some of these advisories are set out below:

§  WHO’s webpage on coronavirus;

§  WHO’s Q&A on coronaviruses (COVID-19);

§  Ministry’s travel advisory as updated on 03 March 2020; and

§  Ministry’s update on COVID-19.

Who can be considered as a ‘suspect case’?

As per the guidelines issued by WHO and National Centre for Disease Control (India), a ‘suspect case’ is a person who satisfies any of the following conditions:

§  a patient with acute respiratory illness (fever and at least one sign / symptom of respiratory disease (for example, cough or shortness of breath) and with no other aetiology that fully explains the clinical presentation and a history of travel to or residence in a country identified in the local travel advisory, during 14 days prior to the onset of the symptom(s);

§  a patient with any acute respiratory illness and having been in contact with a confirmed or probable COVID-19 case in the last 14 days prior to the onset of the symptom(s);

§  a patient with severe acute respiratory infection (fever and at least one sign / symptom of respiratory disease (for example, cough or shortness breath) and requiring hospitalization and with no other aetiology that fully explains the clinical presentation.

Importantly, both the organizations have recognized that a person would be considered as being in contact with a suspect / confirmed COVID-19 case if the two individuals are working together in close proximity or traveling together with the same kind of conveyance.

What measures should the employer undertake to ensure health and safety of employees at workplace?

The labour laws in India impose a general obligation on the employer to ensure health, safety and welfare of its workers to the extent reasonably practicable. Therefore, while there is no legislation, advisory or guideline specifically catering to the menace of COVID-19, the employer must manage the risks associated with the virus and take all reasonable precautions to ensure a safe working environment for its employees.

§  Sensitize your employees: One of the most important measures an employer can undertake is spreading awareness about COVID-19 and consequently containing any panic among its employees. Using the existing channels of intra-communication, the employer should ensure that a detailed and updated information about the virus, the symptoms of infection and the precautionary measures required, is shared with the employees on a regular basis. Employees should also be encouraged to self-report in the event they have been determined by a medical expert to be a confirmed COVID-19 case or if they have been (a) to an affected destination or (b) in contact with someone else who may be a ‘suspect case’.

It is advisable to have a specific and clear chain of reporting line within the establishment to prevent any action from getting delayed on procedural aspects. The employers should be mindful of any information received from unauthorized or unverified sources and should be cautious in implementation of only such measures that are relevant for the workplace and have been recommended by the Ministry. Given the situation is changing on almost daily basis, employers are also advised to closely monitor the advisories updated by the Ministry from time to time, and action them accordingly after due consideration.

§  Travel restrictions: In view of the guidelines released by the Ministry, employees may be directed to cancel business trips and refrain from otherwise travelling to affected countries. To the extent possible, face time with clients / personnel located abroad should be limited, and employers may employ technology (video conferencing, for instance) for necessary communications.

§  Prepare and maintain an accommodative yet rational workplace policy:

a)    Flexible working environment / work from home: Employers should frame and communicate a flexi-work policy to avert the risk of contagion. If there is likelihood of contagion in any department, the employer should have an appropriate resourcing plan in place so that suitable staff adjustments can be made when the opportune time comes.

b)   Leave policy: The employers may consider effectuating suitable revisions in their leave policy including temporarily introducing additional paid sick / medical leave to make the same more accommodative to employees’ medical condition.

c)    Cautionary approach towards absenteeism: While a sensitive approach in the present circumstances is the need of the hour, employers should be wary of employees who, without any reasonable apprehension, intend to avail additional leaves or remain absent from work. While the Indian laws take care of such unjustified absenteeism by classifying the same as misconduct warranting disciplinary action, employers should caution the employees against such absenteeism by making suitable provisions in their disciplinary policy, if the same has not been done already.

d)   Other measures: In addition to the above, employers with larger employee headcount may consider, from both cost and workplace safety perspectives, if there could be non-invasive thermal screening of employees and other individuals at the workplace premises. While such screening should not pose a legal issue and may be justified on the basis of the employer’s duty to protect its employees, it is advisable that employees are notified in advance about installation of such system at the premises. 

§  Workplace hygiene: Although the Factories Act 1948 or the state-specific shops and establishments statute makes provisions for maintenance of basic hygiene at the workplace, the employer must go above and beyond when it comes to workplace hygiene. As per the guidelines released by WHO on workplace management, it is imperative to ensure that the objects commonly used by employees including telephones and keyboards are wiped with a suitable disinfectant. Employees should be encouraged to regularly wash their hands and carry sanitizers while travelling. In the event of any detected case in a common workplace or facility, establishments may carry out sanitation of the workplace and direct the employees to not attend office for a day or two.   

Can the employer subject its employees to medical tests for COVID-19?

The answer depends on the appointment letter / employment agreement issued to / executed with the employees. If the appointment letter or employment agreement provides that the employees have, pursuant to accepting the appointment letter or executing the employment agreement, consented to such medical tests, the employer may be able to enforce such provisions. However, even in such cases, the employer must ensure that it has systems in place that would ensure that the medical records of the employees are kept confidential and secure. The employer must assess compliance with the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011. Further, employers should be mindful of the fact that discrimination risks could arise if the employer singles out certain employees based solely on their nationality or racial or ethnic origin.

If an employee is a confirmed COVID-19 case, can the employer require him / her to be on compulsory leave?

The employer should adopt a sympathetic approach. Given that several persons have had mild cases of COVID-19, there is a fair chance of recovery.

In a confirmed COVID-19 case, the employer should encourage the employee to utilize his / her sick leaves towards the time off for treatment of the disease. In case the employer determines that more time (in addition to the sick leaves) may be required by the employee for treatment and that there is still a risk of contagion, the employer may require the employee to continue to be on leave until it is medically certified that the employee is out of danger. For such period, however, the employer should ensure payment of full wages and continuity of all other benefits.

COMMENT

The above-mentioned measures are only fundamental suggestions which employers may consider in the backdrop of COVID-19. The first step here, no doubt, is knowledge sharing – spreading awareness about the virus before it spreads will enable individuals to be prepared.

This advisory has been authored by Anshul Prakash (Partner), Prachi Vijay (Associate) and Deeksha Malik (Associate). The authors have not commented on the medical aspects pertaining to COVID-19. However, for any legal assistance pertaining to workplace management, please contact editors@khaitanco.com