To print this article, all you need is to be registered or login on Mondaq.com.
Note: Because the COVID-19
situation is dynamic, with new governmental measures each day,
employers should consult with counsel for the latest developments
and updated guidance on this topic.
Like many countries, India is grappling with the COVID-19 virus
outbreak.
The central and state governments have responded to this
evolving situation by imposing curfews, travel restrictions, and
closing down certain services and private businesses. As the
numbers of COVID-19 cases increase in-country, it is likely that
these restrictive measures will become more stringent and
widespread.
Many employers with operations in India are already facing steep
challenges in coping with this fast-changing situation. The
following Frequently Asked Questions (FAQs) are designed to address
some of the more common and basic questions that such employers
currently face. For further information, employers are encouraged
to consult legal counsel, as well as relevant guidance put forth by
the World Health Organization and the Indian
Ministry of Health and Family Welfare.
TRAVEL RESTRICTIONS
1. Should an employer restrict travel to all “affected
areas” where there have been confirmed cases of COVID-19
infections, as reported by the World Health Organization
(WHO)?
Because employees traveling to affected areas or countries may
come in contact with people affected with COVID-19 during their
stay or even while in transit, employers should, as a precautionary
measure, restrict official travel of employees. Indeed, the
government has advised against all non-essential travel.
The travel restrictions currently in place may create barriers
for employees returning to India. Employees returning to India may
be subject to quarantine for 14 days. Moreover, starting on March
22, 2020, until at least March 29, 2020, the government has barred
entry to any international commercial passenger aircraft arriving
from a foreign land.
2. What should an employer do if an employee shares that
they plan to travel to an affected area?
If the employee’s travel is for work purposes, the employer
should either cancel or postpone such travel to any affected area.
However, if the travel is for personal reasons, then the employer
should strongly recommend the employee not travel.
If the employee travels anyway and returns, the employer should
ask that employee to self-quarantine and not come to work for 14
days until they test negative for COVID-19 infection. The employer
may also require medical documentation certifying the negative test
results before allowing the employee to re-enter the workplace.
3. How should an employer handle employees who have family
members who have travelled to affected areas?
The employer should ask the employees to self-report if any of
their family members have travelled to any COVID-19-affected areas.
Once the employee reports that their family members have travelled
abroad, the employer should ask that employee to self-quarantine
and not come to work for 14 days until they test negative for
COVID-19 infection. The employer may also require medical
documentation certifying the negative test results before allowing
the employee to re-enter the workplace.
4. Can we prevent employees from traveling to affected
areas for personal reasons?
An employer has no legal recourse to stop an employee from
undertaking personal travel.
However, if the employee wishes to return to work following such
travel, the employer may ask that employee to self-quarantine and
not come to work for 14 days until they test negative for COVID-19
infection. The employer may also require medical documentation
certifying the negative test results before allowing the employee
to re-enter the workplace.
DISCRIMINATION LAW
5. What discrimination issues should employers address/be
aware of?
While Indian law prohibits discrimination against employees on
the basis of disability, the law does not consider an individual
with an infectious disease such as COVID-19 to be disabled.
In addition to disability, Indian law also prohibits
discrimination based on gender, sexual orientation, caste, and
religion. Therefore, while an employer can implement different
measures for employees based on whether they pose a risk of
infection, such measures should be implemented in a manner that
does not discriminate based on these protected classifications.
6. What are the employer’s obligations to prevent
harassment of those suspected of being infected?
It is the responsibility of the employer to prevent and protect
employees from any harassment, including those suspected of being
infected.
To that end, employers should treat information on an
employee’s COVID-19 status as strictly confidential and shared
within the business only on a need-to-know basis.
DISABILITY LAW
7. Can employers take the temperature of employees who are
coming to work?
Yes.
However, the following points should be followed:
- Obtain the employee’s prior
consent and have a data privacy policy in place. - Test temperature with contact-less
thermometers, if available. - The individual conducting the tests
should be adequately masked and sanitised. - Maintain the tests results to protect
confidentiality.
If an employee has a high temperature, shows other COVID-19
symptoms, or refuses to provide consent to be tested, the employer
may bar the employee from working based on the employer’s
obligation to provide a safe workplace for the other employees.
8. Are there any rules on what employers are allowed to do
concerning subjecting employees to medical examinations or
health-related tests that would apply to an emergency situation
involving a communicable illness such as COVID-19?
See response to FAQ No. 7.
There is no general obligation placed on employers to report to
the government employees suspected to have COVID-19. However,
certain large cities oblige employers to notify local municipal
authorities of any employee suffering from a dangerous disease.
Authorized hospitals or medical facilities that diagnose
individuals with COVID-19 or like symptoms will report this
information to the local municipal authorities.
SAFETY & HEALTH RULES
9. Are non-healthcare employees required to wear
respirators or other personal protective equipment?
While there is no law requiring non-healthcare workers to wear
such equipment, employers may require them to do so for the safety
of other employees.
10. Can an employer with a public-facing business prevent
employees from wearing a surgical mask or respirator?
No.
The Ministry of Health and Family Welfare has recommended that certain categories of people
wear masks, including those with symptoms. While the employer may
ask employees if they have symptoms, the employer may not prevent
those employees from choosing to wear a mask or respirator.
11. What if an employee requests to wear some type of mask
as an accommodation?
See response to FAQ No. 10. An employer may not prevent an
employee from wearing a mask.
12. For employers that have events for large gatherings
scheduled, should they cancel them?
Yes. The Ministry of Health and Family Welfare has advised that
any mass gatherings be cancelled or postponed until the COVID-19
disease is contained. Many state governments are placing certain
localities on curfew; therefore, such gatherings may not be
possible.
IMMIGRATION
13. Has your country’s government issued travel
advisories? (If so, please summarize the guidance and provide a
link to the government’s website (if applicable)).
Yes.
The Ministry of Health and Family Welfare along with other
government authorities have issued travel advisories, which are subject to
change on a frequent basis.
Some of the travel restrictions reflected in these advisories
are the following:
- All existing visas for travel to
India (except for diplomatic, official, UN/International
Organizations, employment, project visas) are suspended until April
15, 2020. - No incoming international
commercial passenger aircraft shall be allowed to disembark
passengers as of 2001 hrs GMT on March 22, 2020. - Travel from certain countries is
prohibited, including from the E.U., UK, Turkey, Afghanistan,
Philippines, and, Malaysia. - Possible quarantine of 14 days for
all incoming travellers, including Indian nationals. - Indian nationals are strongly advised
to avoid all non-essential travel abroad. - Certain land border crossings
(India-Pakistan, India-Bangladesh, India-Nepal, India-Myanmar and
India-Bhutan) have been suspended.
14. An employee who recently travelled to an affected area
(in another country) is having difficulty re-entering your country.
Can the employer help the employee get back into your
country?
In light of the travel restrictions described in FAQ 13, an
employer will have no legal recourse to overcome such
restrictions.
UNEMPLOYMENT & OCCUPATIONAL RISK LIABILITY
15. Do employer-instituted quarantines or temporary
shutdowns or mass layoffs entitle workers to unemployment benefits
or severance?
In an employer-instituted quarantine, employees will be entitled
to their regular salary during the quarantine period. Moreover, the
quarantine period may not count against employees’ annual leave
or PTO allotment. The central government has announced that
employers should not cut wages during this quarantine period,
although no law has yet been passed to this effect. The government
of Maharashtra has issued a circular advising employers to refrain
from terminating employees or reducing their wages as a reaction to
the pandemic.
In the case of temporary shutdowns or layoffs, employees may be
entitled to layoff compensation under certain circumstances. This
compensation may include an unemployment allowance that amounts to
50% of wages for a maximum period of one year. Determining if such
layoff compensation applies, and how much, is complex and will
require legal consultation.
16. What are an employer’s workers’ compensation
obligations if an employee travelled to an affected area for work
and contracted COVID-19?
Workers’ compensation is available if the employee
contracted the illness during or in the course of the employment.
So, for example, if the employee contracted COVID-19 during a work
trip, the employer may be liable for workers’ compensation.
However, how the workers’ compensation law will be applied to
epidemic situations such as the current situation is an open
question.
PRIVACY
17. According to your government’s health department,
what are the steps that employees should follow to notify the
authorities that they suspect or are confirmed to have a COVID-19
infection?
Employees suspected or confirmed to have COVID-19 infection
should report to the nearest hospital or registered medical care
provider. The hospital or provider will then notify the
authorities. Alternatively, the employee may call the toll-free helpline, which connects with the
State authorities.
Employees entering India are required to fill out a
self-declaration form and undergo a health screening at designated
health counters at ports of entry.
Any individual who is found to have malignantly or negligently
spread the infection of disease endangering the lives of others may
be held criminally liable.
18. Can an employer require employees to self-report having
a COVID-19 infection?
Yes, on the grounds of containing the virus and for the safety
of the other employees.
If an employee refuses to self-report, the employer should
report that employee to the state authorities via the toll-free helpline.
19. If one of our employees is quarantined, what
information can we share with our employees? Who can we share it
with?
An employee’s health and medical records is Sensitive
Personal Data or Information (SPDI); therefore, an employee’s
quarantine status should be treated as confidential information,
and shared within the business only on a need-to-know basis.
20. What privacy concerns do we need to be aware of when we
are asking for the health information of our employees in order to
evaluate whether they need to be quarantined?
An employee’s health and medical records is SPDI and
therefore:
- Before any health information is
obtained, processed, stored, or transferred, the employee’s
consent must be obtained; - The employer should have a privacy
policy in place; and, - Treat the employee’s health
information as confidential, and share within the business only on
a need-to-know basis.
*Vikram Shroff is a partner, and Archita Mohapatra an
associate, at Nishith Desai Associates, a law firm based in Mumbai,
India.
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.
Comments are closed.