COVID-19 Dilemma: Are Employers Liable for Illnesses Contracted at Work During an Epidemic?

Essential services are continuing, and employees of those organizations are attending to work. While most people are safe in the confines of their home, a few are taking the risk to come and work.

The EC Act 1923 covers occupational diseases peculiar to the employment Sec 3(2)a & Sch III, but will it also include any disease contracted during an epidemic? In case of a permanent disability or death, what is the employer's liability?

Employer Liability Under the Employees' Compensation Act

The Employees' Compensation Act confines the liability of the employer for death or disability occurring during the course of employment. Only diseases due to and related to occupation will be covered; COVID-19 is not considered an occupational disease, and death due to COVID-19 will not fall under the employer's responsibility.

However, if the employer asks employees to come to the office or factory despite government instructions stating that offices and factories should be closed, and employees should stay at home, and if someone contracts COVID-19 as a result, the employer will be held liable. The punishment for this offense is imprisonment for one year, which may extend up to two years in the case of death or similar occurrences.

Occupational Hazard Responsibility

This case in point falls within the meaning of "Occupational Hazard," though not stated, specified, or listed. No employer needs to divest themselves from their "responsibility" on any ground, including moral or ethical ones, as the concerned employee was "ordered" to present themselves on duty despite readiness or unwillingness. The "issue" needs to be looked into by employers, also on humanitarian grounds. The incapacitated or deceased was faithfully fulfilling their part of the employment contract, maybe not in writing.

Regards, Harsh K Sharan, Kritarth Team

Thanks. But I am asking about essential services which are permitted by MHA notification. For example, water supply, electricity supply, banks, etc. They are coming to their workplace to ensure essential services are ongoing. What if someone from those essential services contracts COVID due to being in the workplace?

COVID-19 and Occupational Diseases

COVID-19 is an epidemic disease. It has nothing to do with occupation. A person can get COVID-19 even without working anywhere. An occupational disease, to come under the purview of the Employees' Compensation Act, is a disease attributed to occupation only. Moreover, it should be contracted during the course of employment.

Defense in Specific Cases

However, we can take a defense like this: in the case of an employee of a bank, the chances of getting a disease transmitted through currency notes and persons visiting the bank are very high. Though you can get it when you exchange currency in a grocery shop or talk to a shopkeeper, you can say that you got it in the workplace and you got the disease just because you were asked to work. But how can you prove that it was through the currency notes that you handled in the bank that you got the disease?

Understanding Section 3(2) of the ECA

We are overlooking Section 3(2) of the ECA. It states:

(3)(2) "If an employee employed in any employment specified in Part A of Schedule III contracts any disease specified therein as an occupational disease..."

Thus, unless the central government specifies otherwise, it will not fall within Section 3(2). There are many more conditions in the section.

Conditions like Heart Attacks or Strokes

However, for conditions like heart attacks or strokes, if they could be related to the employment, compensation may be applicable. Labor jurisprudence follows the principle of preponderance. Hence, these are the documents and evidence available with the employer, and the employee will decide whether it will be covered under the ECA. If the employee can prove that the employer, while permitted to operate the facility, did not follow the rules and guidelines for social distancing, personal hygiene, disinfection of workplaces, transport provisions, masks, hand washing, etc., or did not conduct awareness programs, which might have contributed to an infection resulting in COVID-19, he may receive compensation. Similarly, if the employer can prove otherwise with documents and other substantial evidence that compliance was made, the liability cannot be fastened on him. In short, each case will be judged on its merit. Thus, employers must be meticulous in documentation. Whatever they do must be documented.

Regards, P K Jadia

Labor Law Consultant, Silvassa, UT of DNH and DD

[Phone Number Removed For Privacy-Reasons], [Email Removed For Privacy Reasons]

COVID-19 and Occupational Health Hazards

The COVID-19 or any other epidemic disease may not be covered under the EC Act and cannot be considered under Occupational Health Hazards.

All of us are aware that the Government declared special insurance coverage for deceased individuals dealing with COVID-19 cases, especially for health and police personnel.

Remedies for Essential Service Workers

What remedy is available for individuals engaged in essential services who succumb to death or disability is a valid question.

Employees engaged in any establishment are either covered under ESI or by the WC policy taken by the employer. Additionally, the Government (TRAI) has already instructed all insurance companies to extend the scope to cover COVID-19 cases.

Dear Members,

EPFO has announced Ex-gratia Death Relief Fund of Rs. 10 lakh in the event of the death of an employee due to COVID-19 for his/her family. (Please refer EPFO Circular No. WELFARE/3 (136) 2019/ Policy Matter/08 dated 28.04.2020.)

Suresh

Compensation for Municipal Corporation Employees Due to Coronavirus

In case of the death of a municipal corporation employee due to coronavirus, is the employee entitled to compensation under the Compensation Act of 1923? Is there a rule that a deceased employee has to serve a certain number of months in the municipal corporation to be eligible for compensation?

Please let me know if you need further assistance or have any other questions.

Municipal Corporation Employee and the Employer

Who is the employer in respect of a government department? Naturally, the municipal corporation. For death due to corona, there are other guidelines for the payment of compensation.

I have corrected the spelling, grammar, and punctuation errors in the text while ensuring proper paragraph formatting. If you have any further questions or need additional assistance, feel free to ask.

Good discussion. I liked the responses by Madhu Sir. If someone wants to establish that the death caused due to COVID-19 is contracted arising out of and in the course of employment, then they have to go to court and bring convincing evidence to support it.

I agree with Prabhat Ranjan. COVID-19 or any other epidemic disease may not be covered under the EC Act and cannot be considered an Occupational Health Hazard. This pandemic is an unprecedented situation that caught many off guard, including lawmakers.