COVID-19 - Assistance for Employees

Employees are facing a lot of uncertainty amidst multiple news of layoffs and terminations.  The Ministry of Labour has set up  region-wise control rooms for employees to lodge their grievance. Here are few pointers that can be helpful for employees during this difficult times:

# Employees can reach out to the control room in their region to lodge their grievance in case of pay cut, forced resignation, layoff, termination or any illegal labour practice. 

# Employees can withdraw up to three months of their basic wages or upto 75% of their employee provident fund (EPF), whichever is lower.

# Health Workers can avail of health insurance  of up to Rupees 50 Lacs. 

# Employees who are required to work at their company premises will be provided mandatory insurance by the employers. 

# Construction workers can avail benefit ranging from Rs.1000 to Rs 5000 from the Labour Welfare Fund. Many state governments have already transferred the amount. You may want to help out a construction worker by telling him/her about the scheme. 

India Lockdown extends till 3rd May - Implications for Employees

The all India lockdown has been extended till 3rd May. Today, the Ministry of Home Affairs )(MHA) has released detailed guidelines to be followed. The revised guidelines allow additional economic activities with effect from 20-Apr subject to the safety and social distancing standard operating procedure (SOP) provided in the order. However, this relaxation will not be applicable in the containment zones/hotspots identified by the State and UT administration and only those industry/services will be allowed to operate in these hotspots as allowed by the Ministry of Health & Family Affairs.

Employees who are part of the industry/services exempted from the lockdown order will work from the worksites. Among other safety measures, the MHA has mandated employers to provide mandatory insurance for all workers who will be working from these worksites. The employer has to arrange for transportation for employees which will operate only at 30-40% of their passenger capacity to maintain social distance. Regarding employees who will not be able to work due to the lockdown, the MHA has not issued any further order. The earlier order by MHA, mandating payment of salary to all workers who are not able during the lockdown, continues to operate.

Leaves during COVID

The service conditions of an employee is regulated by various labour laws -  Factories Act, Shops & Establishment Act; employment conditions as agreed with the employees in the Employee Standing Order, Collective Bargaining Agreement;and employment terms and conditions as agreed in the employment contract. Further, there are industry specific labour laws for certain types of employees - dock workers, working journalists which lay down the leave entitlements for those employees.

It is important for you to understand which law is relevant for you to determine your statutory leave entitlement. Unless there is any industry specific labour law, generally, employees working in the trading/service industry fall under Shops & Establishment Act and those in the manufacturing sector fall under the Factories Act. Each State and Union Territory (UT) in India have their own leave rules. Many companies which operate in multiple states/UTs do not have state specific leave policy. In case the leave policy is less beneficial that the state mandated leaves, then the employee is entitled to the additional leaves as provided by the State/UT regulations. The different types of leaves provided by these laws are earned leaves (EL), Casual leave(CL) and sick leave (SL). 

Q. Is there any additional leave that is available for employees who test positive for COVID?

 Many states have notified that employees who are undergoing treatment for COVID will be given 28 days of additional leave. This will be in addition to their existing leave entitlement. 

Q. Can my employer adjust my earned leave if I am not able to work due to the lockdown?

No, your employer cannot adjust your earned leaves during the lockdown as the employee will be deemed on duty during the lockdown as per the guidance by the Centre and various states.

Disclaimer: The above is for guidance purpose only. Consult a qualified legal practitioner for legal opinion.

Employee FAQs on Indian Labour Law - COVID-19

The Indian Government issued a 21 days lockdown order for the entire country around a week ago. This resulted in closure of all establishments except the ones which provide essential services. Many employees are not able to work especially in the manufacturing sector.  To protect the interest of the employees, the Ministry of Home Affairs issued an order on 29-Mar, 2020, an abstract of which is below:

"All the employers, be it in the Industry or in the shops and commercial establishments, shall make payment of wages of their workers, at their work places, on the due date, without any deduction, for the period their establishments are under closure during the lockdown"

This applies to all types of employees whether permanent or temporary. Many employees have questions about their employment during this time.

Q. Can my employer terminate my employment during this lockdown?

Most states have either issued orders mandating employers not to terminate the employees (including contract workers/outsourced workers) during the lockdown. Hence, employers cannot terminate the employees wherever there is a mandatory order. 

Q. Can my employer terminate my employment once the lockdown is over?

If you fall under the definition of a workman in the Industrial Disputes Act, 1947 and have in continuous service for not less than a year, retrenchment (termination) has to be done as per the procedures laid down in the ID Act which includes giving retrenchment notice to the employee, compensation equivalent to 15 days of pay for every year of completed service and employer also needs to send a notice of retrenchment to Regulatory Authority. This applies to all workman whether they work in a factory or an office. 

For factories who employ more than 100 (check for state amendments on the employee thresholds defined), retrenchment unless the State government approves such retrenchment. The retrenchment procedure, in such cases, require 90 days of notice to the employee and compensation equivalent to 15 days of pay for every year of completed service.


Q. Who is a workman? 

"workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward. However, it excludes a person who is employed mainly in a managerial or administrative capacity. Also if someone who works in a supervisory capacity and draws a salary of more than Rs.10,000/- is excluded from the definition of a workman. 

The Apex Court and different High Courts in the country have time and again said that one is not to be guided by the salary drawn by a particular person but the main criteria to determine whether that person is a workman, is to take into consideration the nature of work rendered by him in the industry. The test to decide whether an employee is a workman or not is to take into account his/her primary duties and dominant purpose of his employment. An incidental performance of supervisory duty will not make the character of the employment supervisory. 

Q. My company provides services? Will Industrial Dispute Act be relevant for me?

It is a common perception that Industrial dispute Act applies primarily to the manufacturing organizations. The term industry is very widely defined in the ID Act. Industry is defined as business, trade, undertaking, manufacture, or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen. It includes almost all types of establishments. 

Q. What is my remedy if an employer terminates my employment illegally? 

You can send a legal notice to the employer for reinstatement with back wages. You can also file a case in the Labor Court or the Civil court. Also the government has set up region-wise labour control rooms for employees to lodge their grievance during the covid lockdown.

Q. Can my employer force me to resign?

Your employer cannot force you to resign.You have a right to not resign. Termination is a long process and usually, employers try to avoid it. 

Q. Can my employer stop from paying my salary?

There are various notifications by the Centre and the States to employers to not to deduct the salary of employees. The employer cannot deduct your salary till the lockdown. 

Post the lockdown: Employers cannot hold the salary without the consent of the employees. They have the option to terminate an employee. For termination procedure, see above. 

Note: You may post any query that you have in the comments section.

Disclaimer: The above is for guidance purpose only. Consult a qualified legal practitioner for legal opinion.

Introduction

COVID-19 has changed our world for years to come. We are witnessing unprecedented disruption in our lives - countries lock down; business closures and suspension of personal liberties. Governments across the world have issued regulations to mitigate the disruption. Employees are very vulnerable during this situation.  Governments are trying to minimize the loss for employees - advising employers not to terminate employees during this outbreak; covid related leaves introduced ; relaxation of leave rules and similar initiatives. This blog highlights some of the initiatives taken by the various countries to safeguard employees' interest. The view expressed here are of the author and the reader is advised to consult a local legal practitioner for country specific legal nuances.