COVID-19, the colossal outbreak is carrying the employer-employee relationship to an unchartered territory as employees are increasingly absent from work during the pandemic. Reacquainting employees into the workplace will require the employers to juggle multiple logistical, emotional, and legal concerns.
As COVID-19 will impact employment for the foreseeable future, it is anticipated that many employees will be reluctant to return, even after states have approved reopening plans. In spite of Central and State Governments passing and amending laws in response to the coronavirus outbreak, which laws may be applicable if an employee wishes to take leave during COVID-19? According to the laws of each state, employees are entitled to a certain number of days of leave per year in an establishment. But is it the only option available to employees who require leave for COVID-19 related reasons? Or is an employer authorized to use the accrued annual leave available for an employee?
Well, as described below, managing leave during COVID-19 depends on the circumstances of the request:
Scenario 1: Employee presumably or positively diagnosed with COVID-19.
The employee shall remain quarantined until they are cleared by a medical doctor to return to work.
In such circumstances an employer may take the following actions:
In some states like Karnataka and Uttar Pradesh, employees tested positive are entitled to special paid sick leave during COVID-19, where companies are required to provide COVID-19 infected employees/workmen with mandatory sick leave of 28 days over and above their regular statutory leave entitlement. Employees can apply for leave during COVID-19, using an online leave management system provided by their company or inform the company through other mediums as given by the company policy.
Apart from the above benefit, an eligible employee may avail of the sickness benefit under the Employees State Insurance Act, 1948. The employees may email details of sickness information to the ESIC and intimate the employer on the diagnosis. The employer on receipt of the information from the employee on leave, must adhere to this and cannot forcibly ask an employee to avail leave or arbitrarily deduct the employees leave balance.
Scenario 2: Employee presumptively exposed to COVID-19 and is asymptomatic.
If an employee might have possibly been exposed to COVID-19, the employer may want them to get tested and not be present in office premises. Since the employee is ready for the duty and has no perceptible symptoms of the disease, the employer should try to continue paying their salary while the employee is off-premise. In this circumstance, an employer may take the following actions:
- Allow the employee to work remotely or work from home through the quarantine period, if applicable.
- Provide leave without loss of pay.
- Actions as listed in Scenario 1
Scenario 3: Employee needs to provide care for a dependent child residing in the house due to school closure on account of COVID-19.
The employer may allow employees to work remotely or work from home if possible. If not and in case there is no other suitable person available to care for the child, the employee has the option to utilize their accrued leave.
The employer, however, can not deduct an employee’s leave without the latter’s approval.
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Scenario 4: Employees who have neither tested positive nor are in quarantine, do not report to the office.
Employees in this scenario are not eligible for paid leave. In such circumstances, disciplinary action may be taken according to the company policy and when required, an employer may use available compensatory and annual leave. Once compensatory and annual leave has been exhausted, the employee may be under the loss of pay or leave without pay.
Does Indian Laws stand up to provide Paid Leave benefits to employees?
In countries like the USA, The Families First Coronavirus Response Act was enacted which required certain employers to provide their workers with emergency paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. These provisions will apply from the effective date till December 31, 2020.
While in India at the initial 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 without any deduction in wages for this period. But apart from Uttar Pradesh and Karnataka, this advisory was not mandated by any 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.
Taking the above-said scenarios into consideration, is the non-existence of stricter provisions of the law in India creating chaos amongst an employee and an employer?
Do you think India also should implement such laws to grant emergency paid leave benefits? Do you think apart from the regular leaves available for an employee, all the employers must think about the inclusion of special leave provisions in their Internal Policy exclusively for COVID-19 reasons?
Drop your thoughts in the comments below.