On 1 May 2020, the Secretary, Ministry of Home Affairs, Government of India (MHA Secretary) issued an order extending the nation-wide lockdown period for another two weeks beginning 4 May 2020, albeit with revised restrictions and certain relaxations (Revised Guidelines). Set out below is an overview of the Revised Guidelines:
Ø District-wise division into zones: The Ministry of Health and Family Welfare, Government of India (MoHFW) will, on a weekly basis, notify and categorize the country’s districts into RED, ORANGE and GREEN zones, based on the prescribed criteria. The zone-wise permitted activities have been set out in the Revised Guidelines;
Ø Containment zones within red and orange zones: States / Union Territories and district administrations will further identify high-risk containment zones locally within their respective jurisdictions. These areas will be subject to intensive surveillance, strict perimeter control with minimum permitted activity i.e. only supply of essential goods and services and medical emergencies;
Ø Local restrictions: While States / Union Territories cannot dilute the prohibitions and requirements under the Revised Guidelines, they have the power to impose stricter restrictions based on their own risk assessment; and
Ø Safety measures: All establishments permitted to resume / continue operations must mandatorily adhere to certain social distancing and safety measures in line with the Standard Operating Procedures (SOPs) prescribed under Annexure I of the Revised Guidelines (Central SOP), along with any additional State-specific requirements.
1. Measures mandated by the Central SOP
a) Getting to the workplace
Ø Set up private transport facility for employees, where personal / public transport is not feasible;
Ø Ensure that all vehicles ply at 50% capacity; and
Ø Arrange e-passes for employees using their private vehicles, as per local requirements.
b) Ensuring sanitization and hygiene
Ø Provide face masks to all employees, maintain adequate stock thereof and ensure that they are worn at all times;
Ø Place adequate hand wash / sanitizers (with touch free mechanism) at all entrances, exits and common areas;
Ø Sanitize the whole premises frequently (including between shifts), particularly all common spaces, equipment and surfaces; and
Ø Educate and train employees on good hygiene practices.
c) Maintaining social distance
Ø Maintain adequate gaps between shifts;
Ø Stagger lunch breaks to avoid crowding in the canteen / eating area;
Ø Discourage large gatherings; and
Ø Follow other social distancing guidelines issued by the MoHFW.
d) Tracking and protection
Ø Ensure thermal screening of all persons at entrances and exits;
Ø Require all employees aged above 65 years, those with co-morbidities and pregnant women to work from home;
Ø Ensure that all employees are registered on the Aarogya Setu mobile app;
Ø Notify the list of nearby hospitals / clinics offering COVID-19 testing and treatment; and
Ø Direct all suspect cases to such facilities and identify quarantine areas for isolation in the interim.
2. SOPs prescribed by States
Pursuant to the Revised Guidelines, only a few States have issued their respective notifications regarding guidelines applicable during the extended lockdown period. Most such States, including Andhra Pradesh, Delhi, Kerala, Maharashtra, Punjab and Rajasthan have adopted the Central SOPs. On the other hand, some States have prescribed certain additional measures, as detailed below:
§ While the Central SOP has been adopted, employers are required to give an undertaking regarding compliance with the SOP at the time of applying for passes on the online portal.
b) Tamil Nadu
§ While the Tamil Nadu government has adopted the Central SOP to a large extent, the provisions are quite detailed and granular. The SOP in Tamil Nadu has been set out under three different annexures. Annexure I sets out the SOP to be adhered to while restarting industries, Annexure II is an SOP for construction industries and Annexure III relates to SOP and measures to be taken if a COVID-19 positive is identified in a facility. We have set out below some of the key provisions under each of these Annexures below:
(a) Annexure I: Apart from general provisions regarding social distancing, sanitization, disinfecting premises, carrying out thermal screening, requirement to wear masks, etc., the said Annexure provides for the following:
Ø EOUs, industrial establishments in SEZs, industrial estates and industrial townships shall establish strict access control measures with separate entrance and exit.
Ø All workplaces employing up to 200 persons must make arrangements to ensure that a doctor is available on call, as required.
Ø All workplaces employing between 200 to 1,000 people must ensure the visit of a local doctor once every 2 days.
Ø All workplaces employing more than 1,000 employees must mandatorily have an arrangement for medical treatment of its employees, with the closest large hospital. Arrangements should also be made for a doctor to visit the site, every day, without fail.
Ø People with cough, cold or fever should stay at home after consulting a doctor, should get tested and should remain at home for 14 days. Compulsory paid leave should be given by the employers in this regard.
Ø Non-touch infra-red thermometer should be used for fever cases.
Ø All vehicles and machinery entering the premises should be disinfected mandatorily and parked properly at a distance from each other.
Ø All areas in the premises to be disinfected and cleaned compulsorily, twice a day – once in the morning (prior to commencement of office operations) and once in the evening (after closure).
Ø CCTV camera should be installed at the entrance and also at other points within the premises, for tracking contacts.
Ø There should be a total ban of non-essential visitors at the workplace.
Ø Not more than 2 to 4 persons (depending on size) should be allowed to travel in lifts. Individuals should be encouraged to use staircases.
Ø Pamphlets / awareness material should be distributed to all employees and all employees should be thoroughly oriented on COVID-19 with focus on hand washing, respiratory hygiene, social distancing, surface cleaning practices, self-care, etc.
(b) Annexure II: The said Annexure sets out the SOP for construction industries. Apart from the provisions set out under the Central SOP and as set out in Annexure 1, we have set out below some of the key additional provisions under this Annexure:
Ø A strict ban of gutka and tobacco to be implemented along with a prohibition of spitting.
Ø Messages with the need to maintain safe distance will need to be continuously played and demonstrated during lunchbreak through public announcement systems.
(c) Annexure III: The said Annexure provides for SOP and measures to be taken where an individual is tested COVID-19 positive in a facility. Some key provisions have been set out below:
Ø Immediately intimate the office of the Deputy Director of Health Services of the district concerned or the 24 hours helpline number.
Ø Admit the person in nearby hospitals / clinics offering COVID-19 testing and treatment.
Ø Close contacts to be tested and placed under home / facility quarantine as per standard protocols.
Ø Disinfect the entire area in close proximity to the one in which the employee was working for three days, after which it can be put back in use.
Ø Disinfect the entire premises.
§ While the Central SOP has been adopted, employers are required to submit an online self-declaration on adherence to the Central SOP before starting their operations through the link ‘COVID-19 Self Declaration’ provided on the portal.
3. Additional safety and other measures
In addition to the mandatory measures set out above, employers may also consider taking some of the following safety measures to prevent the risk of contagion at their workplace (to the extent not covered by the respective State SOPs already):
a) Prepare a suitable ramp-up resumption plan for operations and circulate it to relevant stakeholders in advance, including employees, vendors and customers;
b) Require employees to submit a self-declaration regarding any past proximity to an infected person or travel to any high-risk containment zones;
c) Use survey tools to capture requisite information of employees including whether they have visited / stayed in a containment zone in the last 3 weeks;
d) Avoid using the biometric system for marking attendance;
e) Develop IT tools and use digital mediums of communication and documentation to the maximum extent possible;
f) Avoid all non-essential visitors at the workplace;
g) Use floor markers to indicate social distance between employees;
h) Avoid central air-conditioning and maintain adequate ventilation at the workplace;
i) In case of multiple employers using co-working spaces, they must, in consultation with the owner, segregate responsibilities appropriately, particularly sanitization duties;
j) Display noticeboards / circulate advisories to spread awareness regarding social distancing and hygiene measures (including proper disposal of masks);
k) Urge employees to self-assess for any COVID-19 symptoms before they come to work;
l) Ensure that the employees always carry their employee identity card and company-issued authorization letter for seamless movement to and from office;
m) Build a contingency plan around potential impact of COVID-19 spread in the establishment upon resumption of operations;
n) Consider arranging on-site medical support and a vehicle and a driver equipped with the requisite personal protective equipment to transport a suspect case;
o) Document proof of compliance with the SOPS through CCTVs / photographs to provide as evidence to authorities in case of an inspection;
p) Designate a person to hear any related grievances / suggestions from employees and address their queries; and
q) Appoint an internal committee of a few representatives who shall monitor the implementation of the SOP at the workplace on a daily basis and provide a report to the management on a fortnightly basis.
4. Other points to be considered
a) Resumption of operations: All activities not expressly prohibited under the Revised Guidelines or state / local restrictions are permitted to resume. Further, the guidelines clarify that no separate permissions are required to be obtained by establishments permitted to operate in this manner. However, employers may still be required to procure e-passes as per applicable local protocol to enable unrestricted travel by employees.
b) Obtaining medical insurance: While the guidelines applicable previously required employers to provide medical insurance to all employees, the revised Central SOP does not mandate it. Having said that, it may be noted that Tamil Nadu has retained the said requirement in its SOP. It remains to be seen whether other States’ SOPs which are expected to be released in the next few days will retain the provision or not.
Please note that since employees covered under the Employee’s State Insurance Scheme can avail treatment facilities at COVID-19 dedicated hospitals designated by the Employees’ State Insurance Corporation (ESIC), an employer need not obtain a separate medical insurance covering such employees. In respect of other employees, it would be good to check with one’s group medical insurance provider if hospitalization expenses would cover COVID-19 related expenses incurred by them.
c) Using non-invasive thermal screening: While the Central SOP and most State requirements insist on thermal screening without detailing the manner of capturing body temperature, it is advisable to employ non-invasive thermal screening devices such as thermal imaging cameras to avoid the risk of infection.
d) Working in shifts: The Central SOP requires ‘workplaces’ to ensure only ‘adequate gaps between shifts’ without prescribing a minimum time gap. Further, unlike previous guidelines, the Central SOP does not include a provision regarding shifts at manufacturing establishments. These revisions would allay concerns of establishments engaged in continuous processes and any other workplaces wherein a gap between shifts is not feasible to implement. It is advisable that such establishments follow other social distancing measures strictly during their operations.
e) Paid leave to employees for fever, cough and cold: The Tamil Nadu SOP states that employees with fever, cold or cough should stay at home after consulting a doctor, should get tested and should remain at home for 14 days. An employer would be mandatorily required to give paid leave to such employees. The SOP is silent on whether such leave is to be extended only upon the employee testing positive or whether the employer is required to give paid leave of 14 days even if the employee has general fever or cold. Moreover, it also does not specify whether the leave provided by the employer is over and above the leaves that the employee is already entitled to under law and contract.
f) Clarification regarding employer’s liability: On 23 April 2020, the MHA Secretary issued a clarificatory order in respect of an employer’s liability under the lockdown orders. The said order clarifies that apprehensions regarding possible imprisonment of the Chief Executive Officer in case of an employee testing positive for COVID-19 and sealing of the premises for 3 months in such a situation, are misplaced and without any basis. The order also emphasises that the guidelines must not be used by field officers to harass the management of any manufacturing / commercial establishments. Thus, employers who have put in place all safety measures set out in the central / state SOPs need not fear criminal liability even in case an employee tests positive for the virus.
The above checklist has been prepared by members of the Employment Labour and Benefits practice group viz. Anshul Prakash (Partner), Vinay Joy (Partner), Deepak Kumar (Principal Associate), Srishti Ramkrishnan (Associate), Luv Saggi (Associate), Deeksha Malik (Associate) and Kosheel Gupta (Associate).
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