How Should HR Handle ESIC Leave for an Employee's Accident Outside Work?

I am working with a manufacturing unit in the HR department, where one of the employees (covered under the ESIC act) met with an accident outside the company premises. He then went to an ESIC hospital for treatment and was advised to take rest due to a soft tissue disorder. Consequently, he has submitted ESIC leave for 15 days.

Query Regarding Leave Without Pay (LWP)

Now, my query is: should I consider these 15 days as Leave Without Pay (LWP) and process his salary accordingly? Please advise on the appropriate course of action in this situation.

Thanks in advance.

It all depends on whether the employee met with an accident outside the company's premises while being on duty or while he was there at the place of the accident in connection with the company's business. These factors need to be considered before deciding his claim for pay during the period of rest. You cannot deny him pay merely because the accident took place outside the company's premises.

Regards,
B. Saikumar
HR & Labour Law Advisor
Mumbai

The accident took place during working hours when he was coming to the office. I have not submitted any accident report, neither online nor in hard copy. Please suggest what I should do now.

See, as you confirmed that he is covered under the ESI scheme, he is on leave as per the advice of the Doctor of ESI or any other. He has to follow the norms of ESI to get the medical benefits like hospitalization and leave payment, whether it is due to an accident or other medical grounds. The company is not at all required to pay any salary by law.

Furthermore, if he has a leave balance on account of PL, CL as per your company norms, on humanitarian grounds, you can make payment by adjusting those leaves even though he is getting leave cash benefit from ESI.

Now, the last thing, since he is covered under ESI and you are following the compliances, by law, you do not need to pay salaries for his leave period on the grounds of medical/accident, etc.

I hope you got clarification.

Regards,
Pramod Thakar
Pune

If the employee is going to or coming from duty, it falls under notional extension and is eligible for accident benefits. In such cases, you are required to submit an accident report to ESIC for accident benefits, which cover 90% of the expenses. Otherwise, you should only claim sickness benefits, which cover 70%.

Regards,
Raju

Amendment to the ESI Act: Section 51-E

The ESI Act has been amended, and a new section, namely Section 51-E, has been added. Under this section, an accident occurring to an employee while commuting to and from work is deemed to arise out of and in the course of employment if there is a nexus between the circumstances of the accident, the time, place, and his employment. This information is for your reference.

Regards,
B. Saikumar
HR & Labour Law Advisor
Mumbai

You need to send Form 16 now. Since you are late, ESIC will seek your explanation, and you have to be prepared for that. The employee will be paid a sickness benefit (around 50% of the salary) by the local office. Once the local office manager completes the inquiry, the concerned employee will be entitled to a disablement benefit, i.e., around 70% of the salary. After paying 50%, the remaining 20% is paid only after a satisfactory inquiry by the manager. Once you fill up the form, ESIC will seek your explanation, and if necessary, an inquiry will be held in which the manager will visit the site of the accident and record statements of the victim and witnesses, as well as management, to confirm. As some members have stated, accidents occurring while coming to the office or going back are considered as accidents "in the course and out of employment."

Kind regards

ESI Leave and Pay Considerations

In general, ESI also grants pay when it allows ESI Leave. Secondly, ESI feels that the matter is true, so they granted him leave. Hence, payment for those days should be processed and disbursed to him.

Special Leave Provisions

There are provisions for Special Leave except for PL, CL, and SL. If all his leave is consumed, Special Leave can be granted to him; else ESI Leave should be treated as PL, CL, or SL.

In any case, he should receive fully paid leave for that period.

Whether that employee is eligible for ESI benefits or not, once the ESIC certificate (leave) is provided, you cannot pay. He is on ESI leave. In attendance, it must be shown as "ESI LEAVE." Leave salary shall be paid by ESIC only.

Thank you.

Please submit an Accident Report in Form 16 if any accident occurred inside or outside the company during the course of employment.

Regards,
Abubakkar

There is NO requirement under the ESI Act to send an accident report if it takes place outside the factory premises or while not on duty. It is true that as per the ESI amendment and after the insertion of section 51E, if any accident takes place while coming or going back after performing duty, it would be deemed to have arisen during the course of employment, but the provision does not impose any obligation to send the accident form proactively. Therefore, the employer is not under any legal obligation to do so. Moreover, the employee is already being treated at the ESI Hospital.

However, in response to your specific query, the leave should be treated as unpaid and marked as "on ESI leave," and benefits should be paid by the ESI as per the provisions of the Act. You do not need to do anything further. Mr. Mahesh/Mr. Rao has provided the correct advice.

Regards,
PKJAIN

In your case, do not get confused with various comments. This is an employment injury after the amendment in the ESIC Act. You should submit the accident form, Form No. 12, to the respective local office of your area. A hard copy is still required by ESIC. But as you have not reported the accident, do as below:

1. Furnish all details in Form No. 12.
2. Enclose with the form a covering letter stating the explanation for the delay in reporting the accident.
3. Make the entry in the Accident Register under ESIC.
4. Go personally to the local office and submit the Accident form.
5. Submit also a copy of the accident form to the dispensary of the injured employee.
6. Ask for all certificates from the injured employee pertaining to his treatment.

You do not need to pay any salary for the ESIC Leave. The injured person will get TDB from ESIC only after submitting the accident form to both.

I hope this clarifies your query.

Regards,
Mangesh Wakodkar
Aurangabad

Regulation 68 of ESI Regulations casts an obligation on the employer to send an accident report in the prescribed form (Form 12). Therefore, is it not necessary to send the accident report to the Branch Office in view of the introduction of SEC.51-E in the ESI Act?

Regards,
B. Saikumar
Mumbai

Assuming that the company provides sick leave with wages, and the employee requests the company to grant him sick leave for the period of his absence due to the accident, can the employer adjust his sick leave against his absence and grant him salary for the period of sickness in addition to the applicable ESI benefit? What is the practice?

Regards,
B. Saikumar
HR & Labour Law Advisor
Mumbai

Dear Dilawar / Meenakshi, please note that:

- Sickness Benefit Rules

(1) Sickness benefit is 70% of the average daily wages and is payable for 91 days during two consecutive benefit periods.

(2) Sickness Benefit is not payable for the first two days of a spell of sickness except in the case of a spell commencing within 15 days of the closure of an earlier spell for which sickness benefit was last paid. This period of two days is called the "waiting period."

According to the above rules, the sickness benefit for the quoted question will be as follows:

- ₹15,000/30 = ₹500 – daily average wage
- 70% of DAW = ₹500/100*70 = ₹350
- Out of 6 days, only the benefit for 4 days is payable.

Hence, the amount payable would be ₹350*4 = ₹1,400/-. The benefit given by ESI is correct.

Regards,
pkjain

Yes, you should inform the ESI Local office and submit the accident report. Moreover, as you are part of a manufacturing company, they should maintain an accident register and reports.

Regards,
KHS