To mitigate the hardships faced by businesses, certain additional activities were allowed in areas that are not within hotspots and containment zones after April 20, 2020, and more such activities may be permitted from May 3, 2020 onwards. Businesses currently have a lot of questions regarding their express obligations while operating in these times, and additional steps that their employees can take to limit the spread of the novel coronavirus. There has also been some confusion regarding the personal liability of higher management of corporates in cases where any employees test COVID-19 positive. The following article delineates the specific obligations for companies in their workplace and factories, and the extent of their liability.
Running a business and resuming operations or continuing them in times of lockdown will have to be done particularly carefully, considering how easily this novel virus can spread. The government has specified the steps that all employers must take while running operations.
At the workplace, employers must ensure:
In manufacturing establishments, the following steps are mandatory:
[See Annexure I, Order No. 40-3/2020-DM-I (A) dated April 15, 2020 issued by MHA, Govt. of India].
The Ministry of Home Affairs (MHA) has issued Standard Operating Procedure for Social Distancing (SOP) for Offices, Workplace, Factories and Establishments. Very specific measures such as areas where disinfecting is necessary are listed, use of public transport is completely discouraged and employers are expected to provide vehicles full only to 30-40% of their capacity for transporting employees dependent on public transport, all machines and vehicles entering the premises must be disinfected, hand wash and sanitisation through touch-free mechanism is to be made available at entry and exit points, meetings of more than 10 people are discouraged, no more than 2-4 people to travel at a time in lifts/hoists, spitting is strictly prohibited, and other such measures have been specified with details of execution. [See Annexure II, Order No. 40-3/2020-DM-I (A) dated April 15, 2020 issued by MHA, Govt. of India].
A few notable measures which are otherwise also essential for general welfare are that there is to be a strict ban on use of tobacco to prevent employees from sitting, and also, that employers must mandatorily provide medical insurance for all workers.
Thus, the government has issued detailed guidelines for cleaning and ensuring adequate hygiene and social distancing in workplaces that are in operation, or will soon be so. These guidelines are specific and must mandatorily be followed by employers, else they will be liable to penalties under the Disaster Management Act, 2005.
Clause 21(i) of the MHA Consolidated Guidelines dated April 15, 2020 states that the district magistrates must strictly enforce the guidelines, and penalties will be collected from all who violate the same. The MHA had already previously directed the states/UTs to ensure strict compliance with the guidelines issued. Some misapprehensions were raised from the wrong interpretation of these clauses, leading companies to believe that the employer or CEO will face direct legal action, such as imprisonment, if a COVID-19 positive case is found in the factory or workplace, and that the workplace will then be sealed for 3 months thereafter.
A clarification has been issued by the MHA that no such clauses or directives are present in the consolidated guidelines, and the apprehensions are misplaced. It was further clarified that no fresh licence or statutory approval is required for resumption of permitted activity during the lockdown period. [See Clarification, No. 40-10/2020-DM-I (A) dt. April 23, 2020 issued by MHA, Govt. of India].
Therefore, employers/CEOs will not be personally imprisoned or legally reprimanded if a COVID-19 positive employee is found on their premises. It has also been clarified that no fresh statutory approval is needed for resumption of activities during the lockdown period.
The task of ensuring a safe work space cannot be left on the employer alone. All social distancing and hygiene guidelines will become redundant if employees do not actively follow them with rigour. The World Health Organisation has also issued some guidelines on how employees can also help their organisation in containing the spread of this disease.
On a personal level, employees must keep their work stations clean and disinfect the surfaces they are working on, their keyboards, stationery, etc. Employees can also carry hand sanitisers along with themselves, and sanitise their hands as frequently as possible. Masks, while already mandatory, should be kept clean by employees themselves to ensure their own safety.
Additionally, communication is key during these times. Any information that an employee has about their own condition or a possible case on the premises must be shared, so that appropriate measures can then be taken. Further employees experiencing even the mildest of symptoms must stay home. [See “Getting Your Workplace Ready for COVID-19, issued by WHO on March 3, 2020].
Thus, as already known, efforts on a personal level can make a person safe themselves and greatly help in containing the spread of the novel coronavirus.
By Shiv Mangal Sharma
Advocate Supreme Court