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    Managing HR Through COVID-19

    A Practical Guide For Multinational Employers

    Prepared by Trilegal

    As at April 18, 2020

     

    Overview

    This guide will help employers manage HR legal and practical issues arising from COVID-19.

    It covers:

    This publication has been coordinated by Mayer Brown and forms part of a wider Mayer Brown Guide for Multinational Employers, which is available here.

    It has been prepared by Trilegal and is published with their kind permission. With thanks to:

    Trilegal  |  Swarnima  |  Swarnima@trilegal.com  |  www.trilegal.com

     

    Good Practice

    There are a number of key good practice points that employers across all jurisdictions will want to consider in connection with COVID-19:

    1. Keep up-to-date with accurate information

    It is difficult for an employer to make proper decisions based on rumors, assumptions and “fake news”. Therefore, it is important for an employer to stay up-to-date with accurate information and make decisions based on facts. Employers should monitor official sources, including government advisories and the World Health Organization (“WHO“) website, and check that the information they receive is factually correct.

    2. Know where your employees are and where they have been

    An employer cannot keep its employees out of harm’s way if it does not know where they are and where they have been. As outbreaks of COVID-19 occur in various parts of the world, keep track of which of your employees could be at risk.

    3. Communicate with your employees

    Employers should communicate openly and often with their employees so that they have the information they need to help keep themselves educated and updated about the coronavirus. It should not assume that all employees will educate themselves or have access to the same sources of reliable information. Putting everyone on the same page will help the employer and its employees move together in a timely manner as a business. Open and timely communication will help build trust and reduce the spread of rumors that may cause anxiety in the workplace.

    4. Provide a safe platform for employees to raise concerns

    Employers should give employees a safe platform where they can raise concerns on all aspects related to work, from mental health to the risk of having contracted COVID-19. This is not just good employee relations, but early detection and doing something about it can help to reduce the spread of the virus. It is one thing to have an employee assistance plan and ask employees to report issues, but if those who report are stigmatized or treated with contempt, employees may be deterred from reporting.

    There may be nervousness and anxiety in the workplace, and possibly even conflicts, given concerns about the virus. Employees should be given avenues to communicate such anxiety to their employer, so that concerns are addressed earlier and do not balloon into bigger issues.

    5. If you can be flexible, then be flexible

    Employers should understand that this is a time of stress for all parties, including employees. Recognize that employees will have different needs depending on their circumstances (e.g., those with school-age children may need to work from home or may need more time off as school classes are suspended).

    This time of uncertainty will pass but employees will remember how their employer treated them long after the threat of the virus has disappeared. A disgruntled employee may try to make it known to the world how badly their employer treated them. This may affect the employer’s brand and ability to attract and retain talent. The employer may then have to wait for another crisis or challenging time to get the opportunity to prove itself as a good employer.

    6. One size may not fit all

    While consistency in treatment is generally to be favored, be conscious that one size may not fit all. For example, “work from home” or remote working may not work for everyone. The implementation of general directives should be checked against legal obligations under the contract of employment and local law.

     

    Action Point Checklist

    In general terms, the steps an employer needs to be taking now relate to four categories: Review, Communicate, Update and Travel. No list of action points will be comprehensive for all employers, but the following will form a good starting point.

    1.  Review

    • Review business continuity plans and how these would be maintained if employees are suffering from coronavirus absences.
    • Review existing sickness policies and procedures. Are they adequately disseminated to staff? Do they need amending?
    • Review contracts of employment. It may be relevant to establish whether or not individuals can be asked to undertake different work or at different locations or at different times from the norm.
    • Review the employer’s emergency procedures, e.g., if there is an infection and the workplace is closed on a temporary basis. If appropriate, carry out a test run of an emergency communication to see how robust the process is.
    • Ensure contact details for all staff are up-to-date.
    • Undertake a risk analysis of high-risk groups of employees, and what steps can be taken to try and reduce risks for those groups. These groups may include:
      • those who travel frequently to countries where there is currently or may well in future be a risk of infection.
      • those with health issues, such as asthma, diabetes, cancer, or those who are pregnant, who are more likely to suffer adversely if they become infected with the virus.
    • Review procedures in the office for preventing the spread of the virus, e.g. increased cleaning, availability of hand sanitizers and tissues etc.
    • Review planning for the possibility of large scale absenteeism. For example:
      • Identifying the essential positions within the business, what needs to carry on during an emergency, and what is the minimum number of employees required?
      • Identifying employees with transferable skills so that these essential positions can always be temporarily filled.
      • Considering flexible work patterns, such as employees working from home.
      • Identifying those employees who have the necessary IT infrastructure to work from home (e.g., remote access to the office computer systems).

    2.  Communicate

    • Identify an appropriate person as spokesperson/communicator of updates on policies etc., with appropriate credibility.
    • What, if anything, is said about absence from work for reasons other than ill-health, e.g., where an office is closed?
    • Assuming the employer has a health and safety committee, have there been any discussions with that committee about COVID-19 and its potential impact? If there is no such committee, the employer may want to consider setting one up.
    • Communicate as a matter of urgency with the high-risk groups identified in any risk review to ensure they are aware of their high-risk status and the measures that are being taken to assist.
    • Ensure managers are aware of the relevant workplace policies.
    • Consider issuing guidance to employees on how to recognize when a person is infected with the coronavirus.  What are the symptoms, and what should one do if one is taken ill at home or at work? It is also important to emphasize that individuals may not recognize that they have the virus and so may not be exhibiting symptoms. Employees should be informed of the reporting procedure within their employer if they have a potential infection as well as any official reporting process.
    • Provide advice to encourage individuals to take a degree of responsibility for their own health and safety and to slow the spread of the virus.  For example, advice on handwashing and use of sanitizer gels, coupled with a willingness to self-identify where it is possible that individuals have come into contact with individuals with the virus, have become infected themselves or have returned from private travel abroad to an area which turns out to be affected by the virus.
    • Make clear that where staff are ill, they must not come to work regardless, i.e. “struggle through”.
    3.  Update
    • Initiate a system to keep up-to-date, especially given the speed at which infection is spreading.
    • Consider establishing a committee on the employer’s side to coordinate responses and engage with any staff consultative forum, and with particular responsibility for staying up-to-date with public health updates.
    • How will employers communicate to employees regular updates on the coronavirus and its spread? As news develops, it is extremely important for an employer to be issuing fact based updates, to avoid the possibility of fear being used by worried employees to make decisions about whether or not to come to work, whether to travel abroad, etc.
    • Who will have the authority to determine changes to policy and issue any new communications to staff?
    4.  Travel
    • Log employee travel before it is booked and check against the latest travel protocols.
    • Ensure staff know that this applies to personal travel as well as business travel.
    • Encourage staff to tell you if close family members with whom they share a house are travelling to infected areas.
    • Replace face-to-face meetings (especially those involving travel) with video conferences, telephone conferences, etc.
    • Consult/communicate about whether to encourage varied work patterns to avoid travelling on public transport at rush hour.

     

    Country Overview

    As at April 18, 2020

    1. What are an employer’s main legal obligations?

    In India, the main obligations for employers in light of COVID-19 include:

    • Complying with directions on social distancing and COVID-19 prevention measures issued during the lockdown imposed by the Central and respective State governments. For reference, India is under a nationwide lockdown (since March 25, 2020) until May 3, 2020. In light of this, travel within India (and to foreign nations as well) has been heavily curtailed. While internal travel is currently permitted for limited reasons, individuals would need to be issued ‘movement’ passes from the authorities. Thus, employers (who are permitted to continue operations during the lockdown) would need to assist their employees with obtaining such passes. Further, the plan is to partially lift the lockdown from April 20, 2020, and allow operations of certain activities in areas having negligible or a low number of COVID-19 cases. In such cases, the health and safety measures set out by the government have to be complied with.
    • Complying with central and state government orders/advisories regarding payment of full salaries during the lockdown, sanctioning additional leave/holidays to employees during the lockdown, not terminating employment, etc. Given the multitude of orders, advisories, etc., employers should carefully track the developments in their respective states.
    • Complying with cleanliness and health and safety obligations prescribed under the central and state-specific laws, as well as those obligations newly introduced in light of COVID-19. In this context, employers should specifically comply with Standard Operating Procedure (“SOP“) and the National Directives issued by the Ministry of Home Affairs (“MHA“).

    2. Do I need to prepare for and have in place a workplace plan to deal with COVID-19?

    Yes. Before resuming operations, employers need to make arrangements for implementing various social distancing measures prescribed under the SOP. Some key measures prescribed under the SOP include making thermal screenings mandatory for all persons entering/exiting the workplace, making medical insurance mandatory for the workers, identifying hospitals in the vicinity which are authorized to treat COVID-19 and making such information available to the employees, etc.

    One reasonably practicable step an employer could take is to develop a business continuity plan (“BCP“) and employee health and safety (“EHS“) plan. These plans can consider all the various directions, regulations, and government-issued advisories to balance business interests with employees’ health to deal with COVID-19.

    3. What should a workplace COVID-19 response plan cover?

    Broadly, the EHS plan could include details on business travel restrictions, sanitization and disinfection, introducing thermal screenings at office entrances, providing protective equipment to the employees, exploring work from home options (even after the lockdown is lifted), mandating use of facial masks by employees, and implementing effective measures for social distancing (including those prescribed in the SOP and the National Directives of the MHA). The BCP could cover issues related to:

    • managing business operations (a) if the lockdown is extended (beyond May 3, 2020); or (b) if the workplace is located in a COVID-19 hotspot containment area (wherein commercial operations would be prohibited);
    • whether all employees would be required to work at the establishment (once the commercial activities are permitted by the government). If all employees are not required to attend work, then the BCP could identify the critical operations that require employees to be on-site, the number of employees required for such business groups, their working hours/shift schedules, etc.; and
    • the internal processes or stakeholders responsible for obtaining curfew/movement passes for employees (who are required to attend work during the lockdown).

    Further, the Ministry of Health and Family Welfare has released the Preventive measures to be taken to contain the spread of Novel Coronavirus (COVID-19). This advisory relates to preventive measures which could be adopted for the well-being of government employees. However, private workplaces could also draw on these measures (as well as State-specific advisories and regulations) to formulate their workplace-response plans.

    For general guidance on the contents of a workplace COVID-19 response plan, please see the Appendix, in conjunction with the Action Point Checklist.

    4. Can I direct my employees to go home or stay at home if there is an outbreak?

    Yes. Due to the nationwide lockdown, all private offices/workplaces, commercial establishments, manufacturing units, and industries, etc., are required to be closed until May 3, 2020. Exceptions to this closure order are limited [1].  Further, as discussed above, internal movement in India is also generally restricted. In light of these prohibitions issued by the central and state governments, employers can direct employees to stay and work from home (wherever feasible).

    Further, employers have a general duty to maintain workplace health and safety. Thus, even after commercial activities are permitted, in the interest of social distancing, organizations could consider facilitating work-from-home (where the job permits) for a short period. Thus, in such cases, employees can be required to stay (and work) at home. However, in such cases, employers should continue to comply with their obligations under the employment contracts (e.g., to pay full wages). Once the lockdown is lifted, if business operations do not permit work-from-home, and employees are asked to stay at home, they could raise claims for full wages, or at least half-wages (if they prove they have been ‘laid-off’ as per law). Further, labour authorities could also require that salary deductions should not be made for employees who are asked to not report to work (please see response to question 6 below).

    5. Can I direct an employee to see a doctor?

    Yes. Generally, employment contracts grant companies rights to require employees to undergo medical examinations/checks. Employers could rely on such contractual provisions and various government advisories to undertake preventive measures such as asking employees to see a doctor.

    6. Do I have to continue to pay wages and provide other employment-related entitlements during a COVID-19 outbreak?

    Yes. The contract of employment will continue during a COVID-19 outbreak unless the employment has ceased. An employer cannot refuse to pay wages simply because the employee is unable to attend the workplace or perform any work because of the lockdown. In fact, in various government orders and/or advisories, employers have been required/requested to:

    • pay full salary during the lockdown;
    • not to terminate employment; and
    • sanction paid leaves/holidays or consider employees to be ‘on-duty’ (if they do not report to work due to COVID-19).

    Violations of the government orders in this regard would certainly expose employers to penal sanctions (including imprisonment and/or monetary fines). Further, in a recent ruling, the Supreme Court took the view that even advisories are mandatory orders. Thus, authorities may not view violations of advisories in the employers’ favor (and could potentially impose penal sanctions).

    Having said that, by obtaining employee consent, employers could pay reduced salaries. However, key factors such as the specific circumstances in which the employee consents, whether the reduction is implemented during or after the lockdown, etc., would need to be thoroughly assessed before reducing the salaries.

    7. Can I quarantine certain staff to certain parts of an office or send them to a different office?

    This is possible. To contain the outbreak of COVID-19, employers could take internal measures to implement social distancing at the office. This could include asking employees to limit their movement to specific areas in the office and not visiting parts of the office, prohibiting large gatherings or meetings, etc.

    With respect to requiring certain employees to work at different offices, typically, employment contracts contain provisions around unilaterally requiring the employees to work at different locations (which could include other States as well). Such provisions could be relied on to ask the employees to work in different offices/cities. However, given the current travel restrictions (specifically, on inter-city movement), it may not be possible (or reasonable) to require employees to work from a different city.

    8. Can I direct my employees to report suspected cases of COVID-19?

    Yes, in the event of a COVID-19 outbreak, it would be reasonable and lawful to ask employees to report to the employer and/or to the appropriate government authorities if they suspect they have COVID-19.

    9. Can an employee lawfully refuse to attend work if there is a COVID-19 outbreak?

    Yes. During the lockdown (issued under the MHA order and its guidelines), employees can lawfully refuse to attend the workplace.

    Further, even after the lockdown is lifted (and commercial activities are permitted to resume), some employees could refuse to report for work at the office premises (if in fear of contracting COVID-19). In such cases, employers can (to the extent the job permits) allow employees to work from home. If the employee refuses to work from home as well, employers could consider taking disciplinary action (subject to following the relevant processes).

    However, where the job role does not permit the work to be carried on from home, and if there is a reasonable apprehension of contracting COVID-19, an employee’s refusal to come into work could be viewed by authorities as lawful.

    10. Can I screen employees and customers before allowing them to enter the workplace?

    Yes. In fact, the MHA’s SOP mandates employers to conduct thermal screenings of all persons entering and exiting the workplace. For such screenings, if an individual’s data is collected, stored, processed, etc., in electronic format, employers would have obligations under the Indian data protection laws (such as, obtaining consent, implementing reasonable security practises, etc.).

    As discussed in response to question 5, employment contracts are typically structured to enable companies to require employees to undergo medical examinations/checks. Employers could rely on such contractual provisions and the SOP to ask employees to undergo screening at entry/exit points in the workplace. Similarly, organizations could require visitors/customers to consent to screenings for gaining entry into the workplace.

    [1] Currently, exceptions are primarily available to essential service providers. However, from April 20, 2020, further relaxations will be granted (including to information technology (IT) and IT-enabled services companies, and manufacturing units of certain types).

     

    CONTACT: Trilegal  |  Swarnima  |  Swarnima@trilegal.com  |  www.trilegal.com

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    Appendix: Workplace COVID-19 Response Plan

    A plan should deal with the following:

    BEFORE AN OUTBREAK / GOVENRMENT-IMPOSED LOCKDOWN

    • Preventive measures.
    • Disinfecting the workplace regularly.
    • Maintaining good indoor ventilation.
    • Making sure that employees, suppliers and customers are aware of the employer’s plans in the event of an outbreak.
    • Ensuring sufficient supplies of appropriate masks, alcohol wipes, gloves, paper towels, thermometers, disinfectants, etc.
    • If employees are required to travel to areas known to have the virus, whether such travel is necessary.

    DURING AN OUTBREAK / GOVERNMENT-IMPOSED LOCKDOWN

    • The steps the employer will take to ensure the safety of employees while at work during a COVID-19 outbreak include how an employer will identify risks of employees becoming infected and how to minimize such risks. The employer may also wish to seek advice from government/official sources as to what steps need to be taken, e.g., quarantine requirements.
    • Communication strategies such as how and what information will be communicated to employees, suppliers and customers.
    • Where employees will work, e.g., home, in the office or in alternative temporary offices.
    • At what stage will the workplace be closed and who will decide that.
    • How to deal with infection and/or deaths of colleagues, e.g., counselling.
    • A mechanism for determining whether employees, suppliers and customers will be allowed access to the workplace, especially if they show symptoms of being infected by COVID-19.
    • What to do with high-risk/exposure staff (e.g., pregnant, key employees and employees who travel).

    AFTER AND OUTBREAK / GOVERNMENT-IMPOSED LOCKDOWN

    • Ways to ensure that employees and customers have fully recovered before they are allowed back into the workplace.
    • Rehabilitation for sick employees returning to the workplace.
    • Communication with employees and flexibility on enforcing requirements imposed on employees under their contract of employment will be important in maintaining employee relations and reducing anxiety and panic during an outbreak. Therefore, depending on the circumstances, employers may wish to:
    • Discuss with staff the possibility of a workplace closure prior to closing.
    • Allow employees to take any specific leaves available for COVID-19 under local law or company policy, annual leave, or unpaid leave once sick leave and other leave entitlements have been exhausted.
    • Allow employees to work from home.
    • Explore salary reduction or unpaid leave as an alternative to termination of employment where business has slowed down. However, legal advice should be obtained before taking such measures as there could be restrictions around this under local laws.
    • Employers should make visitors to its offices aware of any health and safety hazards associated with entering the workplace before any intended visit, where reasonably practicable.

     

    This publication by Trilegal provides information and comments on legal issues and developments that may be of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek legal advice before taking any action with respect to the matters discussed herein.