Current Labour Laws and their Adequacy in Protecting Employees affected by COVID-19
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:
(i) Frequent
and thorough hand washing facility shall be provided to all workers, customers
and work-site visitors.
(ii) In
case of unavailability of soap or running water, alcohol-based hand rubs with a
minimum of 60% alcohol content shall be provided
(iii) Workers
shall be encouraged to stay at home if they are sick and to call the State
helpline
(iv) 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.