The Indian Government’s Social Distancing Guidelines May Not Be Easy To Comply

On March 24, 2020, in order to prevent the spread of the Novel Coronavirus (COVID-19), the Indian government imposed a mandatory countrywide lockdown of all offices and establishments until April 14, 2020. Only essential services providers were allowed to function, and detailed guidelines were issued by both, the Central (Federal) and State governments, on who came under the definition of an essential services provider.

On April 14, 2020, the Central government announced an extension of the nationwide lockdown until May 3, 2020. In his speech, India’s Prime Minister alluded to certain relaxations for businesses so that they could gradually start functioning from April 20, 2020. In this regard, the Central government has issued detailed guidelines (the “Revised Guidelines”) today.

This update discusses the exempted categories of businesses and the mandatory social distancing norms to be imposed at offices and factories to check the spread of COVID-19.

Applicability of the Revised Guidelines

The Revised Guidelines will take effect from April 20, 2020. Until then, the existing lockdown guidelines (as notified by the Central and State governments from time-to-time) will apply.

Exempt categories of workplaces

As before, all commercial establishments, private offices, industrial establishments and factories are required to remain closed until May 3, 2020, unless specifically exempt under the Revised Guidelines. Some of the businesses that can commence operations from April 20, 2020 (including the ones covered under the existing guidelines) are as follows: 

• hospitals, clinics, tele-medicine facilities, chemists, medical laboratories and collection centers, and pharmaceutical and medical research laboratories;

• authorized private establishments providing essential services or participating in efforts to contain COVID-19, including home care providers, and diagnostics and supply chain firms serving hospitals;

• factories which manufacture drugs, pharmaceuticals, medical devices, medical oxygen and their respective raw materials and intermediaries;

• manufacture, distribution and retail of fertilizers, pesticides and seeds;

• aquaculture industry;

• information technology vendors banks, insurance companies, payment system operators, regulated financial markets, and capital and debt market services;

• information technology vendors for banks;

• oil and gas operations, including refining, transportation, distribution, storage and retail of petroleum products;

• telecommunications and internet service providers;

• manufacture and trading of essential goods;

• print and electronic media;

• data and call centers for government activities;

• IT-enabled service providers, subject to an employee strength cap of fifty percent (50%);

• e-commerce companies;

• courier services;

• warehousing services;

• private security services and facilities management services for maintenance and upkeep of offices and residential complexes;

• all industries operating in rural areas, i.e., outside the limits of municipal corporations and municipalities;

• all manufacturing and industrial establishments with access control located in Special Economic Zones, Export Oriented Units, industrial estates and industrial townships;

• manufacture of information technology hardware;

• production units which require continuous processing and their supply chain;

• manufacture of packaging material; and

• construction of all industrial projects in rural areas and industrial estates.

The Indian government has tried to focus on livelihoods and lives in coming up with this list of exempt businesses. The focus is on agriculture, manufacturing and commercial activities relating to export of services. If, however, an employer does not squarely fall under the exempted list, it will be advisable to seek specific permission from the local authorities prior to commencing operations.

Mandatory social distancing norms

The Revised Guidelines require the exempt categories of businesses to comply with certain prescribed social distancing norms at the workplace. Businesses must:

• Require all employees to wear face masks;

• Prohibit meetings or gatherings of more than ten (10) persons;

• Seat employees and workers at least six (6) feet apart at all times, including at meetings and training sessions;

• Disinfect all areas in the office or factory premises, including the entrance, common areas, cafeterias and canteens, meeting rooms, equipment and lifts, washrooms, walls and other surfaces with a user-friendly disinfectant;

• Disinfect vehicles and machinery entering the premises;

• Arrange for private transport facility for employees, which should function on thirty percent (30%) to forty percent (40%) passenger capacity;

• Provide medical insurance;

• Arrange for temperature screening for all persons entering and leaving the premises;

• Provide hand wash and sanitizers, preferably using touch-free equipment, at all entry and exit points and common areas;

• Keep a gap of one (1) hour between shifts, if any;

• Provide lunch breaks to employees on a staggered basis to avoid large gatherings at a given time;

• Prohibit more than two (2) to four (4) persons from using lifts in office or factory premises, depending on the size of the lift;

• Prohibit the use of tobacco and tobacco products and spitting;

• Prohibit entry of non-essential visitors;

• Identify and notify a list nearby hospitals and clinics which are authorized to treat COVID-19 patients;

• Encourage persons above sixty-five (65) years of age, persons with co-morbidities and parents of children below five (5) years of age to work from home;

• Encourage use of Arogya Setu, a mobile application released by the Indian government to trace COVID-19 patients based on symptoms; and

• Provide intensive training on good hygiene practices to employees.

In addition, manufacturing and industrial establishments with access control located in Special Economic Zones, Export Oriented Units, industrial estates and industrial townships are required to make arrangements for workers to stay within the factory premises (as far as possible) or in adjacent premises.

The social distancing norms mandated by the Indian government are fairly detailed and employers will have to invest time and resources in making these arrangements. In light of this, employers will have to assess if it is feasible to operate from their office premises or continue to work from home. 

In addition, if employees require passes to be issued to enable them to travel to the office or factory premises, they can approach the Incident Commander appointed by the local authorities. Employers will have to assist employees in procuring such passes, as needed.

The Revised Guidelines will not apply to any containment zones as identified by the State government, Union Territory or District administrations. In case any region is identified as a new containment zone, all activities permitted under the Revised Guidelines will stand suspended immediately. Given this, workplaces will need to assess if they fall under a containment zone, and if so, they will not be able to take the benefit of the exemptions. 

Moreover, the States and Union Territories are empowered to impose stricter measures to control COVID-19 depending on local requirements. However, they are not permitted to dilute the requirements under the Revised Guidelines. Given this, workplaces will have to assess if they are permitted to operate under the relevant State or Union Territory’s guidelines or if any additional measures need to be adopted in order to so operate. 

The Revised Guidelines empower the local authorities to implement the exemptions, and ensure that factories and offices are adequately prepared to implement the mandatory social distancing norms prescribed under the Revised Guidelines. In our view, implementing the social distancing norms will be very difficult for offices and establishments, as local authorities can randomly check to see if any office is not complying with the norms and if found non-compliant, shut it down.

By Kritika Agarwal, Corporate, M&A, Restructuring, Majmudar & Partners, India, a Transatlantic Law International Affiliated Firm.