On May 30, 2020, the central government announced a plan for a phased re-opening of the country, propagating the approach that to preserve the economy, we must learn to live with the coronavirus for the time being. A large number of sectors have finally been given permission to open up for the first time since the lockdown. This article discusses which business located where can reopen, the measures they must take for safe operations, and the extent of their liability.
As per the Ministry of Home Affairs’ Order dated May 30, 2020 [Govt. of India, Ministry of Home Affairs, Order No. 40-3/2020-DM-I(A)] (hereinafter “MHA Order”), whether a business can reopen will depend on two things, firstly, the zone it is located in, and secondly, under which sector/type of business it falls.
Location: In areas outside the containment zone, all activities are permitted except the ones falling under sectors for which a starting date has been announced in the MHA Order. Therefore, so long as your business is not inside a containment zone, irrespective of it being in the red, orange or green zone, it can be opened as long as it is not listed as impermissible to a certain date.
Sector: All types of activities have been permitted except for the following ones which can only be started from a particular date:
8 June, 2020 Onwards - The following will be permitted to reopen from this date:
Standard operating Procedure will be notified in due time for the reopening of these places.
In July, 2020 - A decision will be taken as to the date of reopening in July of schools, colleges, coach and training centers, in consultation with the state governments, and a Standard Operating procedure will be notified for a safe reopening.
Indefinite date of resumption - The MHA has not given a date for the resumption of the following activities, however the fact that they are on the list means that the government will eventually try and finalize a date for resuming them:
Therefore, so long as your business is not on the list of businesses/activities to be resumed at a later date as per the Order, it can be reopened if it is not in a containment zone.
The MHA Order gives a series of precautions that all people must follow, but also gives certain specifications for workplace.
[See Annexure I, MHA Order]
Reopening of workplace will require that employee comply with all of the above guidelines diligently to ensure safety and efficiency at the workplace.
The resumption of manufacturing in industrial units, at present, is to be governed by an earlier communication by the MHA to the States regarding the process issues on May 9, 2020 [MHA Communication No. 1-137/2020/Mit II]. The guidelines suggest a precautionary approach in the initial weeks of operation because machinery and equipment will not have been used for a while, and may require servicing.
The communication directs that employees must be trained to notice abnormal sounds and smells which may indicate a leak, exposed wires, wobbly machinery, and other such signs which could indicate a need for maintenance or possible shut down of the unit for the period of fixing machinery. All equipment must be inspected for safety at the time of reopening.
There are specific steps to be followed for safe storage and manufacturing in factories which include checking storage for wear and tear and spills during lockdown, checking for oxidation in open stored goods, checking HAZMAT chemicals for safety before use, and carrying out a safety audit of the entire unit before restarting.
In addition, there are certain specific precautions to be taken for the prevention of spread of COVID-19 in manufacturing units:
1. Ensure 24 -hour sanitisation of the factory premises
2. Entrance health checks
3. Provisions of hand sanitisers and mask to all employers. a. Providing gloves, masks and hand sanitisers to be done at all factories and manufacturing units.
4. COVID 19 health and prevention staff education
5. Quarantine measures for supply and storage of goods
6. Physical distancing measures
7. Working in shifts
8. Scenario plan on discovering a positive case
9. Presence of skilled workers Workers involved in dealing with hazardous material must be skilled and experienced in the field. No compromise on deployment of such workers should be permitted when an industrial unit is opened up.
Therefore, the reopening of manufacturing units will require certain extra precautions and safety methods to be adopted, which have been provided in detail by the central government and are being enforced by the states. In case your industry is having difficulty in managing crucial backward linkages that may be critical for their safe functioning, they should approach the local district administration for specific assistance, which will be provided.
In case of any breach by the company, they will be governed by Section 58 of the National Disaster Management Act, 2005 [Act No. 53 of 2005]. [See Annexure II, MHA Order].
If a company is found to be violating lockdown measures, persons in-charge and responsible for the company and conducting its business shall be held accountable, unless they are able to show that the violation was committed without their knowledge and they had done due diligence to ensure the guidelines were being followed [S. 58(1), DM Act 2005].
In cases of violations of the guidelines being committed by a company are found to be done with the consent or connivance of, or can be attributed to the neglect of any director, manager, secretary or other officer of the company, that officer shall also be made liable [S. 58(2), DM Act 2005].
Thus, companies and person in charge or having knowledge can be made liable for violating the guidelines imposed by the government.