This article is written by Shraddha Maheshwari, a student of Diploma in Entrepreneurship, Administration and Business Laws from LawSikho. She has discussed relaxations in employment laws due to COVID-19.
Coronavirus Disease has been declared pandemic by the World Health Organization (“COVID-19”). The impact of the pandemic has been widespread affecting millions of people across the globe. It has posed a unique financial and practical challenge for nations across the globe. Businesses have been hit by a crisis created due to COVID-19 and have been forced to shut down their operations. With lockdowns announced by most of the nations, the employers are finding it difficult to thrive the temporary lockdown and are compelled to lay off their workmen and employees or terminate their services.
The Government of India (“GOI”) through the Ministry of Home Affairs announced a nationwide lockdown till April 14, 2020 vide an order dated March 24, 2020 passed in exercise of the powers under Section 10(2)(i) of the Disaster Management Act, 2005 and the guidelines framed thereunder (“Lockdown”). The guidelines, as amended from time to time, inter alia, set out which activities are permitted to be undertaken. The GOI further extended the lockdown till May 31, 2020 vide an order dated May 17, 2020 effective from May 18, 2020 (“Extension Order”) through the Ministry of Home Affairs. The Extension Order gives the power to State Governments and Union Territories to demarcate Red, Orange and Green Zones. Further, the District authorities have been encumbered with the task to demarcate Containment and Buffer Zones. Guidelines have also been annexed to the Extension Order which set out the Standard Operating Procedure for various purposes (“Guidelines”).
Additionally, the Ministry of Health and Family Welfare has also issued its guidelines on preventive measures to contain the spread of COVID-19 in the workplace (“MOHFW Guidelines”).
The Guidelines have provided certain relaxations in Red, Orange and Green zones. However, the movement of all persons and vehicles is restricted in Containment Zones except those engaged in essential services and for medical exigencies. Though, the domestic air travel and rail travel has been relaxed subject to certain restrictions.
The Guidelines lay down stringent measures and compliance to be undertaken by the employers to contain COVID-19 which are set out below:
- As far as possible work from home shall be encouraged.
- The lunch breaks shall be staggered.
- The employers shall ensure sanitization measures such as temperature screening, provision for hand wash and hand sanitizer for all persons on entry and exit and common areas and that the workers wear masks at all points of times.
- In respect to the travel to and from the workplace, if the employer provides transport then social distancing shall be observed in the vehicle. he employers are further encouraged to assign work from home, to employees or workmen above the age of 65 (sixty- five) or persons with co-morbidities or pregnant women.
- The employer shall ensure on best efforts basis the use of Aarogya Setu app by employees having compatible mobile phones.
It is pertinent to note that any violation of the Lockdown Order and the Guidelines is punishable under Sections 51 to 60 of the Disaster Management Act, 2005 and Section 188 of the Indian Penal Code, 1860.
Additional compliances have been set out under MOHFW Guidelines. However, MOHFW Guidelines do not have a binding force and shall be observed on good practice basis by the employers. Set out below are such compliances:
- Physical Distancing of 1 (one) meter shall be observed.
- Practice frequent hand washing (for at least 40-60 seconds) even when hands are not visibly dirty and use of alcohol based hand sanitizers (for at least 20 seconds).
- Respiratory etiquettes to be strictly followed. This involves strict practice of covering one’s mouth and nose while coughing/sneezing with a tissue/handkerchief/flexed elbow and disposing of used tissues properly.
- Self-monitoring of health by all and reporting any illness at the earliest.
- Any staff reportedly suffering from flu-like illness should not attend office and seek medical advice from local health authorities.
- Any staff requesting home quarantine based on the containment zone activities in their residential areas should be permitted to work from home.
- Isolation of an ill person at the workplace.
- Report to the district authorities of any suspected cases of COVID-19.
Further, the Ministry of Skill Development and Entrepreneurship through an Office Memorandum clarified that a trade apprentice under the Apprenticeship Act, 2014 shall be paid the stipend for the entire period of the apprenticeship and in wake of the Lockdown the period of the apprenticeship shall also be extended equal to the lockout, lay off or strike and for a maximum of 6 (six) months. Further, the Government shall reimburse the stipend to the employers of the establishments under the National Apprenticeship Promotion Scheme for the period of the Lockdown.
The Ministry of Labour and Employment vide a letter to all regional heads dated March 20, 2020 extended the last date of filing the Unified Online Annual Return for the year 2019-20, as required under 8 (eight) labour law statutes and 10 central rules, to April 30, 2020. The Unified Online Annual Return was required to be filed by February 01, 2020 but such non-compliance is not penalized pursuant to this letter.
Further, the validity of licenses under Contract Labour (Regulation and Abolition) Act, 1970 and Inter- State Migrant (Regulation of Employment and Conditions of Service) Act, 1979 has been extended to May 31, 2020 for those licenses which were due for expiration in March, April or May, 2020.
Under the Mines Act,1952, the mine owners, agents and managers have been provided with a relaxation of 1 (one) month in filing or submission of notices under the respective rules and regulations from the due date falling in March or April, 2020.
In respect to social security, certain relaxations have been made by Employees’ State Insurance Corporation(“ESIC”) and Employees’ Provident Fund Organization(“EPFO”) for the employers.
The ESIC has extended the timeline for filing of contributions under the Employees’ State Insurance Corporation Act, 1948.
The employers have been permitted to file the return of contribution for the period from October, 2019 to March, 2020 till June 11, 2020. Generally, such return is required to be filed within 45 (forty-five) days.
Under the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 (“EPF Act”), the rate of contribution to the provident fund has been reduced from 12% (twelve per cent) to 10% (ten per cent) for the months of May, June and July, 2020.
Further, the EPFO has announced that for any delay in payment of contribution or administrative charges due for any period during the lockdown, no proceeding shall be initiated for levy of penal damages under the EPF Act. Additionally, the Electronic Challan cum Return can now be filed without the need of simultaneous payment of contributions by the employers.
In light of the pandemic, EPFO has also allowed the employers to send the request for permission, to be granted to the authorized signatory to undertake various tasks online, by sending a scanned copy of the letter via email instead of post.
Supreme Court on the Guidelines
The Supreme Court was moved by way of a writ petition filed to bring to notice the suffering and condition of the migrant workers. The Supreme Court in an interim order dated March 31, 2020 reiterated:
“Disobedience to an order promulgated by a public servant would result in punishment under section 188 of the Indian Penal Code. An advisory which is in the nature of an order made by the public authority attracts section 188 of the Indian Penal Code.
We trust and expect that all concerned viz., State Governments, Public Authorities and Citizens of this country will faithfully comply with the directives, advisories and orders issued by the Union of India in letter and spirit in the interest of public safety.”
The matter is sub-judice and the final judgement is awaited.
Further, the Ministry of Home Affairs passed an order dated March 29, 2020 and vide the order the employers were mandated to make the payment of wages for the duration of the Lockdown. However, the order has been challenged in the Supreme Court and The Supreme Court has stayed the said order of the Ministry of Home Affairs. The matter is under judicial consideration and the judgement is awaited.
In addition to the above, the governments of the States and Union Territories have passed circulars, orders and advisories.
For example, in Goa the state government issued a circular to all exempted establishments stating that failure of all employees in such establishments may attract necessary actions as may be decided by the factory or establishment’s management.
Further, several state governments such as Gujarat and Rajasthan have notified an amendment to the Factories Act, 1948 and extended the working hours from 8 (eight) hours to 12 (twelve) hours for a period of next 3 (three) months. However, the employer shall be liable to pay overtime wages for such extended hours.
Such circulars, orders and advisories will have to be analyzed on a case to case basis to understand the implication of each one of them.
This article was written on May 26, 2020 and in accordance with the orders, circulars, advisories and guidelines as existing on the date.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: