LAW’S RELATED TO LEAVES FOR EMPLOYEES POST COVID-19

The World Health Organisation (WHO) announced COVID-19 as a "pandemic" on March 11, 2020. WHO defines a pandemic as "an epidemic occurring worldwide, or over an extensive area, crossing international boundaries and typically affecting an outsized number of individuals." This means a disease outbreak will be labelled as an epidemic when it's widespread over several countries or continents, usually affecting an excessive number of individuals. WHO had stopped in need of calling the outbreak an epidemic because local spread was limited. Most cases had a connection to China or other emerging hotspots – for instance, Iran or Italy. But now, evidently, local transmission is widespread, with over 115 countries detecting the virus and confirming a minimum of 500 cases.

Employers generally tend to ensure a safe and healthy work environment for their employees and must do 'everything reasonably possible to prevent COVID-19 outbreak at the workplace. One must stay updated with notifications, orders, directives from official sources. Also, take active steps like promoting good workplace hygiene and undertaking other measures like disabling biometric access, ensuring the supply of tissues, masks, hand gloves, sanitisers and adequate disposal mechanisms, encouraging employees to remain reception if they develop even mild symptoms. The Indian Government has also issued an advisory to Indian travellers to restrict themselves from all non-essential visits to other COVID-I9-affected countries. An employer may prevent an employee who is affected by communicable diseases like COVID-19 from entering the workplace to protect other employees. Currently, there is no compulsion on an employer to report an employee to the Government. However, under the COVID-19 Regulations notified by certain State Governments (as discussed above), individuals have a compulsion to self-report visits to countries or areas where COVID-19 has been reported, and the Regulations provide for isolation of people with such travel history within the last 14 days (for individuals who are symptomatic and asymptomatic).

In some states like Karnataka and Uttar Pradesh, employees who tested positive are entitled to special paid leave during COVID-19. Companies must supply COVID-19 infected employees/workers with mandatory sick leave of 28 days over and above their regular statutory leave entitlement. Employees can apply for leave if suffering from COVID-19, using a web leave management system provided by their company or informing the corporation through other mediums as given by the corporate policy.

Apart from the above advantages, an eligible employee may avail the sick benefit under the worker's State Insurance Act, 1948. The employees may email details of sickness information to the ESIC and intimate the employer on the diagnosis. On receipt of the employee's data on leave, the employer must adhere to this and cannot forcibly ask an employee to leave or arbitrarily deduct the employees' leave balance.

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If an employee might have been exposed to COVID-19 disease, the employer may want them to get tested and not be present on office premises until recovered. Since the worker is prepared for the duty and has no noticeable symptoms of the disease, the employer should attempt to continue paying their salary while the worker is off-premise. In this circumstance, an employer may take subsequent actions:

• Allow the worker to figure out if they remotely /work from home through their quarantine period.
• Provide leave without loss of pay. The employees can use paid leaves.

The employer may allow employees to work remotely or work from home if possible. If not, and in case, the employee has the option to utilize their accrued leave. The employer, however, cannot deduct an employee's leave without the latter's approval. Once compensatory and annual leave has been exhausted, the employee may be under unpaid leaves. This may lead to no payment even if the employee is suffering from COVID-19.

While in India at the first stage of the Coronavirus outbreak, the Ministry of Labour and Employment had advised all employers that workers on leave should be deemed to be on duty with no deduction in wages during this period. But apart from Uttar Pradesh and Karnataka, this advisory wasn't mandated by the other states and thus propelled the employer into the predicament of what must be done when an employee requires leave for COVID-19 related causes. It is advisable not to suspend any employee on the sole ground that they are a COVID-19 patient or a suspected COVID-19 patient.

Since COVID-19 has been declared an epidemic, there's a likelihood that Governments may impose further restrictions on movement within the town or state, if necessary. In some states, including Karnataka, governments have advised IT/BT companies to permit their employees to figure from home. Employers should consider developing protocols to affect inter alia:

• employees coming back from travel (whether business or personal);
• employees who are exposed to either confirmed or potential cases of COVID-19;
• employees who have symptoms similar to COVID-19 but have not yet been diagnosed;
• employees who have tested positive for COVID-19;
• consequences and implications of a breach of protocols (specifically, of breach of those measures mandated by Government regulations/guidelines).

Protocols should cover everything from self-quarantine guidelines to what leave policies will apply; on the basis, these further leaves must be provided, and guidelines should be issued. The impact of COVID-19 is not the same for every country; somewhere, it is at its peak, while in another country, it has just started. Employers with ex-pats or other employees working abroad should consider reviewing the relevant employment agreements to assess any risks, especially regarding travel, leave, compensation, medical and insurance policy coverage. Employers should consider insisting ex-pat employees regularly report on the prevailing conditions at their work related to COVID-19. If an ex-pat or employee is quarantined abroad, employers should seek legal help to obtain specific advice.

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Author: Ankita Agarwal