India: Workforce management during and post lockdown – overview of recent employment regulatory updates

published on 19 May 2020 | reading time approx. 9 minutes

With the entire nation combating daunting pandemic outbreak of covid-19 and with the strict implementation of the lockdown, it is needless to say that it also resulted in severely impacting the Indian economy and businesses. Earlier when the lock down was announced for the first time on 21st March 2020, all shops, commercial establishments, private offices (barring establishments providing essentials) were all ordered to be shut down and implement work from home policy for their employees.

• Covid-19 Management Guidelines and Standard Operating Procedures (SOPs) for businesses  for resuming their operations

• Further regulatory updates related to employment

• Way Forward

On 15th April, 2020, the Government of India vide a notification ordered the extension of lockdown till 3rd May 2020, though it also decided to allow certain additional establishments to operate in areas other than containment zones from 20th April, 2020 subject to strict compliance to the existing guidelines on lockdown measures. Again the Government of India announced as on 1st May 2020 to continue the lockdown from 4th May 2020 onwards to another 2 (two) weeks up to 17th May 2020 with additional relaxations which, in particular, allowed private offices to operate with up to 33 percent strength with remaining persons continue working from home. For detail information on this, please refer to this article.

The Government of India and State Governments issued various notifications, guidelines and regulatory changes from employment and work force management perspective for the businesses, which are allowed to resume their operations during the lockdown. These guidelines prescribe how to maintain social distancing and prevention of covid-19 while establishments are operational. Further, the Government of India and the State Government tried to ease employment compliances during lockdown. This article shall give you an overview about the most important employment updates for establishments and industries.

Covid-19 Management Guidelines and Standard Operating Procedures (SOPs) for businesses  for resuming their operations

With the extension of lockdown on 15th April 2020 and 1st May 2020 the Government notifications were issued which provide Management Guidelines, which have to be implemented by all industrial and commercial establishments, work places, offices for resuming their operations. We have consolidated these covid-19 Management Guidelines and SOPs as follows:

1. Wearing of face cover is compulsory in all workplaces and adequate stock of such face covers shall be made available;
2. Mandatory thermal scanning of everyone entering and exiting the workplace should be done;
3. Hand wash and sanitizers preferably with touch-free mechanism to be made available at all entry and exit points and common areas. In addition there shall be sufficient quantity of hand wash and sanitizers made available in the workplaces;
4. Frequent sanitization shall be ensured of entire workplace, common facilities and all points, which come into human contact, e.g. door handles etc.. All areas of the premises of the workplace including entrance gate of the premises/ offices; cafeteria; meeting rooms/conference halls/ open areas available; equipment and lifts; washrooms; walls/other surfaces etc. shall be disinfected completely using user friendly disinfectant mediums :
5. Organizations are required to arrange for special transportation facility e.g. buses for the workers coming from outside to ensure that these workers are not dependent on the public transportation system. While doing so care to be taken to ensure that each of vehicle is occupied with 30 percent to 40 percent of passenger capacity;
6. All vehicles and machinery entering the premises are mandatorily required to disinfected;
7. Persons above 65 years of age, persons with co-morbidities and pregnant women shall continue to work from home. Further parents of children below the age of five years should be encouraged to work from home;
8. It is pertinent to note that earlier when the fresh guidelines were issued as on 15th April 2020 , use of Arogya Setu App was on voluntarily basis, however this has been made compulsory for all establishments with effect from 4th May 2020. Accordingly, all employees shall be mandatorily required to download and use the Arogya Setu App. It shall be responsibility of the head of the respective organization to ensure 100 percent coverage of this app amongst all of its employees;
9. Employers are required to ensure social distancing through adequate gaps between shifts (not less than 1 hour) and to have stagger lunch breaks for its staff. Further, all organizations shall sanitize their workplaces between shifts;
10. Large gatherings or meetings of 10 or more persons should be avoided. Also the seating arrangement of the employees/workers should be such to maintain at least 6 feet away from other on job sites, meetings, training or any sort of work related gathering;
11. Not more than 2/4 persons (depending on size) will be allowed to travel in lifts or hoists. Use of staircase should be encouraged;
12. In case of manufacturing establishments, frequent cleaning of common surfaces and frequent hand wash is mandatory. Also intensive communication and training should be taken up amongst the workers on good hygiene practices;
13. Medical insurance of workers to be made mandatorily;
14. Strict ban on tobacco etc. should be imposed and spitting should be strictly prohibited;
15. There should be a total ban on non-essential visitors at sites;
16. Hospitals/clinics in the nearby areas, which are authorized to treat covid-19 patients, should be identified and listed to be made available at work places at all times.

It is pertinent to mention that the above-mentioned guidelines are mandatorily required to be followed and duty is casted on all persons in charge of work places to implement these guidelines. In case of any non-compliance with the above guidelines, there shall be legal consequences on the Management, under section 51 to 60 of the Disaster Management Act, 2005, besides legal action under section 188 of Indian Penal Code, 1860. In addition, it may also result in suspension of license to operate.

Further, most of the states like Maharashtra, Karnataka and Tamil Nadu have adapted these covid-19 Management Guidelines and SOPs, in their respective orders, thereby requiring to be strictly implemented by all establishments before they start with their operations. However, these States have additionally imposed certain restrictions and additional guidelines to be complied with. Some of the important ones are mentioned herein below:

State of Maharashtra:

• While the Government of Maharashtra has passed the Order dated 2nd May 2020 on extending the lockdown up to 17th May 2020, wherein it has also stated that relaxation granted to private offices to operate with up to 33 percent strength is not applicable to Mumbai Metropolitan Region (MMR), Malegaon Municipal Corporation (MMC), Pune Municipal Corporation (PMC) and Pimpri-Chinchwad Municipal Corporation (PCMC). Accordingly, establishments located in such areas will have to wait for further instructions, before resuming with their operations.
• The employers of exempted establishments, offices, workplaces are also required to have in place travel passes issued to their employees. These travel passes are issued by District Magistrate/ Collectors everywhere except in Municipal Corporation of Greater Mumbai (MCGM) PMC, PCMC, Nagpur Municipal Corporations (NMC) where it will be done by Municipal Commissioners.

State of Karnataka:

• In addition to adopting the revised guidelines issued by the Central Government  as on 15th April 2020 and 1st May 2020, the Karnataka Government also added a requirement for all establishments to file online self- declaration regarding adhering to SOPs before resuming operations. This self- declaration is required to be signed by the Managing Director or Director as the head of the company uploaded online on the State Government’s website https://kum.karnataka.gov.in/.

State of Tamil Nadu:

• State of Tamil Nadu in adopting the SOPs to be strictly adhered to by all establishments also provide to comply with the following requirements:

a.) Issuing ID cards to all employees;
b.) For those units having up to 200 employees working in the premises, there should be a doctor available on call whenever needed. For those with 201 -1000 persons working in the factory premises, such establishments are required to have a part time doctor visit once in every two days;
c.) To ensure only medically fit persons, without any co-morbid conditions and below 55 years of age are called for work;

• Further private offices (standalone air conditioners only permitted) including construction companies and real estate developer back offices to function from 10:30 am to 6 :00 pm with 33 percent staff. Permission needs to be obtained from Commissioner, District Collector for having employees at workplace.
• Further, certain establishments, i.e. IT and IT enabled services outside the outside the jurisdiction of Greater Chennai Police (except in containment zones)are permitted to operate with 50 percent employees in areas, whereas within the jurisdiction area of Greater Chennai Police such establishments can function with the strength of 10 percent employees (maximum 20).
• Also, these establishments can commence their activities after obtaining passes after submitting online application with the appropriate authorities for the vehicles to be used for the transportation of workers/ employees.

Further regulatory updates related to employment

Further regulatory changes have been introduced to ensure ease of compliance including extensions of due dates of filing returns under applicable labor laws. Some of them are as per given below:

1. Extension of validity of licenses granted under the Contract Labour (Regulation and Abolition) Act, 1979 and the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act 19: The Ministry of Labour and Employment has extended the validity of the licenses under Contract Labour and Inter-State Migrant Workers, which are due for renewal in the month of March, April and May up to 31st May 2020, considering the lockdown across India due to covid-19. However, the issuance of new licenses would continue as it is.
2. Employees’ Provident Fund Organization (EPFO) releases implementation guidelines  on payment of Employee and Employer share of Employees Provident Fund (EPF) contribution by Government of India for the next 3 (three) months in view of Coronavirus outbreak.
    
   As a part of Pradhan Mantri Garib Kalyan Yojana” (PMGKY) on March 26, 2020 the Central Government of India has announced to pay 24 percent (i.e. 12 percent each share of employer and employee) towards Employees’ Provident Fund (EPF) in respect of  three  wage months i.e. March 2020, April 2020, May 2020 for low earning workers drawing monthly salary below INR 15,000..
    
   On April 10, 2020, EPFO has notified certain guidelines listing certain eligibility conditions for availing the benefit under this scheme. These conditions include: (i) Applicability for those establishments employing up to 100 employees with 90 percent or more of employees earning less than INR 15,000/- monthly wages ; (ii) Universal Account Number (UAN) of employees should be seeded with his/her Aadhaar; (iii) employees must already be a member of the Employees’ Provident Fund Scheme, 1952 and the Employees’ Pension Scheme, 1995 whose contributions are received for any period during the last six months i.e. from September 2019 to February 2020 in the Electronic Cum Return (ECR) on monthly wage of less than INR 15,000 (iv) The employers must ensure to disburse wages of these months and are required to file only one valid ECR.
    
   Once ECR is uploaded, then the challan will separately show such amounts of employees’ and employers’ contributions as Central Government relief due under this benefit scheme. After the employer remits the payment due from him as reflected in challan, the EPF & EPS contributions in respect of eligible employees will be credited directly in their respective UAN by the Central Govt.
    
   It is pertinent to note that at the time of submission of ECR, the employer is required to certify correctness of information furnished electronically in ECR and in Form 5A with an undertaking that the employer is liable for penal and coercive consequence for submitting any incorrect or false information/declaration to avail the relief.
3. EPFO makes filing of ECR easier for business and extension of due date for payment of EPF contributions and ECR due for wage month March 2020: In order to further ease the compliance procedure under EPF Act, EPFO has decided to separate the filing of monthly Electronic-Challan cum Return (ECR) from payment of the of the statutory contributions reported in the ECR.
    
   This will entail convenience to employers as well as employees covered under the EPF Act, as the ECR can now onwards be filed by an employer without the need of simultaneous payment of contributions and contributions may be paid later by the employer after filing the ECR.
    
   Further, EPFO vide a circular has extended the due date for payment of EPF contributions and ECR filing due for wage month March 2020 from 15.04.2020 to 15.05.2020 to employers of those establishments which disbursed wages for the month of March, 2020 to their employees. Further, it has been clarified that, those employers who are seeking to avail the relief of this extension are required to file ECR for the wage month March 2020, on or before 15.05.2020. They are also required to duly certifying having disbursed the wages to employees for the month of March by having to declare actual date of disbursement of wages for March 2020 in the column “ Salary disbursal date” in the ECR.
4. Extension of filing of Employees’ State Insurance contribution for the month of February 2020 due to covid-19: In similar line with the relief regarding EPFO, the Employees' State Insurance Corporation (ESIC) has extended the filing of ESI contribution for the month of February 2020 and March 2020 to 15th May 2020. No penalty, interest or damage will be levied on establishments during the extended period.
5. Due Date for filing Annual Return in Maharashtra due to covid-19: On April, 22nd, 2020, the Government of Maharashtra, Department of Labour has notified that the due date for filing annual returns under the Maharashtra Shops And Establishments (Regulation Of Employment And Conditions Of Service) Act, 2017, has now been extended to 31st  July 2020 as many establishments could not file their annual returns for the year 2019 due to the lockdown.
6. Exemption from Payment of late fee under Maharashtra State Tax On Professions, Trades, Callings And Employments Act, 1975
    
   The Government of Maharashtra, Office of the Commissioner of Professional Tax vide trade circular No.6T of 2020, has informed circular the whole of the late fee payable by the registered employer in respect of monthly or annual returns pertaining to periods up to March 2020 and monthly period of April 2020 has been exempted due to technical difficulties faced by the tax payers subject to fulfillment of eligibility conditions : (i) Any amount payable (tax + interest) as per return should have been or shall be paid on or before the filing of returns. (ii) The employers should submit the returns pertaining to the period up to April 2020, on or before 31st May 2020.
    
   In case any employer who has not fulfilled the conditions or has submitted false information to avail the benefit of exemption then, exemption of late fee shall be revoked and action will be taken against such employer.

Way Forward

The Government of India as well as the State Governments introduced several compliances in terms of workforce management. Even post lockdown, these safety guidelines prescribed under Standards Operating Procedure and further guidelines will have to be complied with in order to reopen business operations. However, the employers obligation to provide a safe workplace goes beyond this. It is very important for the management to take conscious efforts towards preventing and eliminating any infection risk in the organization. In case of a positive Coronavirus case is found within the organization, it could lead to disruption of operations for a quarantine period. Further, any non-compliance of these Standards Operating Procedures could expose the management towards legal consequences as per the Disaster Management Act, 2005 and Indian Penal Code, 1860. Therefore it is recommended to create a covid-19 Task Force within the organization, which will take care of the following aspects:

• Implementing a covid-19 Safety Workforce Policy/ Standards Operating Procedure Handbook: This Policy/Handbook should be implemented  in addition to existing HR Manuals and should set out and record all safety guidelines due to covid-19. It should cover all central as well as state guidelines and has to be updated on timely basis. Before an employee resumes to work, he should be informed and trained online about this new Policy/Handbook.
• Further a Safeguard Matrix or Employee Assessment Master-List should be implemented by the HR, which sets out which employees are allowed to work from the factory premises/offices and which have to continue to work from home due to health conditions.
• Obtaining consent of the employees to conduct temperature checks and to take required medical information of employees and their families.
• Implementing a visitor policy and instructions for internal and external meetings.
• Updating the already existing IT-Policy to ensure that data protection regulations are also followed during Work from Home. The same should also cover the collection of personal data, e.g. health data of employees.

By exercising these workforce management measure companies should be ready to function in a post lockdown and post covid-19 economy and with that kick start their operations.