GOVERNMENT ORDERS REQUIRE FURTHER CLARITY
With the decline of COVID-19 cases and positivity rate, the Ministry of Home Affairs, Government of India, and the respective State Governments had eased certain restrictions which were earlier imposed to prevent the spread of COVID-19, some of which at the time of publication of this article are in the process or have been rolled back to a certain extent.
Offices had been allowed to function with their full capacity while adopting regular sanitization and COVID-19 appropriate behavioral norms. Orders issued by several State governments also provided directions to re-open the activities like gyms, schools, private offices, cinemas, etc., subject to compliance with the COVID-19 appropriate behavior (“CAB”). The CAB included wearing of masks, maintaining social distance, regular hand washing and use of sanitizers, etc., at the premises and market areas, etc.
From time-to-time, certain States authorities issued orders and notifications, etc., mandating vaccination of staff of all the establishments whether public or private, that has a dealing with general public, to be fully vaccinated.
On February 04, 2022, the Delhi Disaster Management Authority (DDMA) issued a notification with directions that all Government Offices of National Capital Territory (NCT) of Delhi/ Autonomous Bodies/ PSUs/ Corporation/ Local Bodies shall be allowed to function at 100% strength. Further, it provided that Private Offices in the NCT of Delhi shall be allowed to function at 100% strength. It however, advised to follow the practice of work from home as far as possible.
The onus for ensuring strict compliance of CAB at the premises/ market areas to contain the spread of COVID-19 virus was shifted on the owners of private Offices/ Shops or Establishments, etc.
On the same lines, the Haryana State Disaster Management Authority on February 05, 2022 ordered all government as well as private offices to function with their full capacity while adopting regular sensitization and CAB.
Post steep decline in COVID-19 cases, the Health and Welfare Department, Government of NCT Delhi on February 27, 2022 and the Haryana State Disaster Management Authority on February 16, 2022, respectively, lifted all the restrictions imposed previously for COVID-19. Further, with the improvement in the COVID-19 situation, the mandate of wearing masks in public places and the penalty imposed as a result of non-compliance was lifted on April 01, 2022 in NCT of Delhi and in the State of Haryana on April 02, 2022.
On March 01, 2022, the Department of Revenue and Forest, Disaster Management, Relief and Rehabilitation of State of Maharashtra issued a notification which provided that staff of all the establishments that cater to the public at large shall necessarily be fully vaccinated. It further provided that all the staff working in any office or establishment, public or private that has dealing with the general public or staff engaged in any industrial, activities must be fully vaccinated. Furthermore, it allowed all the offices (government and private) to function with full capacity.
The Office of the Development Commissioner, SEEPZ Special Economic Zone (SEZ), Ministry of Commerce & Industry, Maharashtra issued Guidelines/Revision for Work From Home related orders on March 22, 2022, where it was stated that the IT/ITES units w.e.f. July 01, 2022 should work from office with at least 50% capacity with double dose of vaccination and ensuring COVID-19 protocol. Further, it provided that w.e.f. September 01, 2022 all the units (IT/ITES) should function with 100% capacity from the office, complying with the guidelines issued by the State Government and Central Government.
Anhad Law’s Perspective
It is clear from a reading of several orders and notifications, some of which have been referred herein, that work from home is not being insisted by the State Governments. At the same time directions are being issued to employers, whose staff has a dealing with general public, to have them vaccinated. In the absence of any specific Central / State government order / notification allowing an employer to make vaccination as a condition precedent, before allowing an employee to return to office, it is not clear whether an employer could make, vaccination mandatory, and a condition precedent for the employees who are being called to workplace (before their return to workplace), especially the ones who do not have a public dealing. Further, it is not clear whether a disciplinary action can be initiated by employers, against those employees who refuse to get vaccinated.
From a reading of the instructions issued by The Office of the Development Commissioner, SEEPZ Special Economic Zone (SEZ), Ministry of Commerce & Industry, Maharashtra of March 22, 2022, it is clear that the employees who are employed with IT/ITES units operating within a SEZ have to work from office and they should be vaccinated, from the given dates (unless revised). However, it still lacks clarity whether an employer, could make it mandatory for its employees, working in such units, to be vaccinated and be able to take appropriate action, if they refuse.
While it seems to be an indirect approach followed by the State governments, putting an onus on employers to call only such employees to workplace, who are vaccinated, all such orders lack clarity for an employer to make it mandatory for its employees, working in such offices / units, to be vaccinated and be able to take appropriate action, if they refuse. It is possible that some employers especially operating in a SEZ, especially in the State of Maharashtra, may use the above instructions to insist that their employees get vaccinated given the place of their employment is within the SEZ, however, it would need to be seen whether employers would, face any opposition (from the employees) and, get support from the government and/or regulatory bodies if employers take an adverse action against defiant employees.
–Manishi Pathak, Founding Partner and Amrita Singh, Associate
Disclaimer: The contents of the above publication are based on understanding of applicable laws and updates in law, within the knowledge of authors. Readers should take steps to ascertain the current developments given the everyday changes that may be occurring in India on internationally on the subject covered hereinabove. These are personal views of authors and do not constitute a legal opinion, analysis or interpretation. This is an initiative to share developments in the world of law or as may be relevant for a reader. No reader should act on the basis of any statement made above without seeking professional and up-to-date legal advice. Given the order, notifications, etc., issued by several State or Central governments, from time to time, due to change in the COVID-19 cases, it is advisable to check the current status and not solely rely on the contents of a publication as a current status in a matter, unless mentioned otherwise.