[co-authors: Vikram Shroff, Archita Mohapatra]*
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.
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.
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.
7. Can employers take the temperature of employees who are coming to work?
However, the following points should be followed:
- 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?
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.
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)).
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.
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;
- 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.