COVID-19 has changed the rules of the workplace, with remote working and social distancing becoming the norm. Questions that have arisen in this context include – does self-quarantine amount to paid or unpaid leave? Can employees demand the right to work from home? Can mass lay-offs be stemmed in the looming economy? Does the employer have the right to private data in the interests of the pandemic? And so on.
Certain global companies such as Walmart, Uber, Amazon etc., have adopted new policies to grant leave with compensation to employees who have contracted COVID-19 or are under self-quarantine by the order of their respective employer or the government.
Walmart had also permitted employees who are neither sick nor quarantined, but do not feel comfortable reporting to work during the outbreak, to work from home under paid leave. Uber (although the drivers are only independent contractors) promised their drivers financial assistance for 2 weeks if they tested positive for the virus. Amazon had announced 2 weeks of pay for employees diagnosed with COVID-19 or put into quarantine. Amazon and Google also created relief funds to support their contractors and gig workers who tested positive for COVID-19.
In India, Cognizant, Zoho Corp, Paytm and Flipkart were among the early companies to impose work from home policies for all their employees.
At workplaces, giving an employee a choice between coming in to office (which means exposing themselves to the risk of the virus) or facing the risk of losing their employment, in essence, amounts to forced labour. Article 23 of the Constitution of India prohibits forced labour. The Supreme Court of India, in People’s Union For Democratic Rights and Others V. Union Of India, 1983 SCR (1) 456 held that “any factor which deprives a person of a choice of alternatives and compels him to adopt one particular course of action may properly be regarded as ‘force’ and if labour or service is compelled as a result of such ‘force’, it would be ‘forced labour’.” In the current scenario, forcing employees to report to work at the risk of their health in the pandemic can be seen as a violation of the right to health, and can be viewed as forced labour under Article 23 of the Constitution of India.
Where there is a discordance between two fundamental rights, the Hon’ble Supreme Court in K S Puttaswamy v. Union of India, (2017) 10 SCC 1, held that, the “Doctrine of Proportionality” should be applied. The rights are to be harmonized in a such a manner that it results in their least possible infringement. The Indian labour force is well within its rights to seek the ability to work from home without any loss of benefits as part of their fundamental right to health.
The Ministry of Labour and Employment issued a memorandum on 19 March 2020 providing preventive measures to contain the spread of COVID-19, which included a plan whereby only fifty percent of employees are required to attend office each day, with the other half working from home. This memorandum pertains to government employees only.
The State Government of Haryana has issued guidelines to the management of Factories/Establishments in the State of Haryana in the view of prevailing epidemic situation of COVID-19 requiring that all Factories/Establishments to mandatorily follow the guidelines. The guidelines, in brief, state that:
- Frequent and thorough hand washing facility shall be provided to all workers, customers and work-site visitors.
- In case of unavailability of soap or running water, alcohol-based hand rubs with a minimum of 60% alcohol content shall be provided
- Workers shall be encouraged to stay at home if they are sick and to call the State helpline
- Respiratory etiquette shall be encouraged, including covering coughs and sneezes and various other steps as mentioned in the notification.
The State Government of Odisha issued very similar guidelines for factories in the State of Odisha to comply with.
Employee’s State Insurance Corporation has extended the Employees’ State Insurance contribution for the month of February 2020 and March 2020 to 15th April 2020 and 15th May 2020, respectively, on account of the COVID-19 pandemic. Therefore, time limit for payment of contribution has been extended to forty-five days instead of fifteen days for the months of February and March 2020 only. The Employee’s State Insurance Corporation also issued a circular regarding measures to be taken in view of the spread of COVID-19.
The Employees’ Provident Fund Organization (EPFO), on 20 March 2020, has advised its members, pensioners and employers to avail various online services offered by EPFO, and to avoid visiting EPFO offices. Employees can raise claims online for Provident Fund advances or final withdrawal, pension or insurance benefits and receive payment of PF/Pension/Insurance benefits directly in their bank account.
While it is evident that the rise of COVID-19 poses several threats to worker safety, health and security and challenges the established norms of labour laws in India, it is also true that we have yet to evolve a consensus on handling these uncertainties. While it may be necessary to relax certain documentation requirements under labour law, we must not lose sight of the fact that most labour-related legislation in India were drafted with labour welfare as its guiding lodestar. In these uncertain times, labour protection becomes more important than ever. Whether in terms of paid leave, or social security benefit, computation of continuous period of service or bonus, or in the ability to receive lay-off/retrenchment compensation, workers’ welfare must reign supreme. If enterprises are reeling under the economic impact of this pandemic, it is up to the States to step in with suitable stimulus packages to bridge the breach. This is an evolving situation and we believe organizations may not be able to seek any exemption from the applicability of State government mandates to factories and employers in their jurisdiction.