COVID-19 As An Occupational Disease Under ESI

COVID-19 Ground Reality

The severe acute respiratory syndrome coronavirus 2 (“SARS-CoV-2”) popularly known as COVID-19, is a catastrophe that has adversely affected the lives of employees and employers across the globe. The functioning of a workplace has innately changed with a constant fear of the workforce being affected by the disease while being at work. While the vaccination is steadily picking up pace, concerns such as vulnerability, transmission of the infection and other related occupational hygiene need to be  constantly addressed and upgraded as SARS-COV-2 mutates. Once the world resumes a near normal life and workforce returns to the original form of functioning, most of whom are likely to be at risk of being infected with the virus. In light of this, it becomes important to consider, whether a pandemic like SARS -COV-2 should be recognised as an occupational disease?

What is an occupational disease?

An “occupational disease” is any disease contracted primarily as a result of an exposure to risk factors arising from work activity. “Work-related diseases” have multiple causes, where factors in the work environment may play a role, together with other risk factors, in the development of such diseases.[1]

Section 52 A (1) of The Employees’ State Insurance Act, 1948 describes “occupational disease” as follows: “If an employee employed in any employment specified in Part A of the Third Schedule contracts any disease specified therein as an occupational disease peculiar to that employment or if an employee employed in the employment specified in Part B of that Schedule for a continuous period of not less than six months contracts any disease specified therein as an occupational disease peculiar to that employment or if an employee employed in any employment specified in Part C of that Schedule for such continuous period as the Corporation may specify in respect of each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall, unless the contrary is proved, be deemed to be an “employment injury” arising out of and in the course of employment.[2]

The above definition has been replicated under Section 36 of the Code of Social Security, 2020.[3]

It becomes imperative to assess the relevant laws and notification that have dealt with occupational diseases, SARS-COV-2 in particular, before answering the above question.

SARS-COV-2 under  Employee’s compensation Act, 1923 and Employees State Insurance Act, 1948.

The Employee’s Compensation Act, 1923 (“ECA”) provides for payment of compensation to workmen or their dependents in case of personal injury caused by accident or certain occupational diseases arising out of and in the course of employment and resulting in disablement or death.

For SARS-COV-2 to be considered as an occupational disease, the employee should have contracted it in the workplace in the course of his or her occupation. An occupational disease, by definition, is particular to the risk arising out of the occupation. Therefore, the employer is not liable to pay any compensation under the ECA to the legal heirs or nominee of the deceased employee, unless the employee has contracted the diseases during the course of his or her occupation.

Under Employees State Insurance Act, 1948, (“ESI”) an employee who is COVID positive, covered under the ESI scheme but not having completed the mandatory contribution period of 9 months will also be eligible for medical as well as sickness benefits i.e., cash benefit for the period of treatment and rest. Further, in accordance with the ESI Scheme itself, an employee once registered under the ESI scheme will be entitled to free medical benefit from any of the ESI hospitals.  However, wages for the period of treatment and rest will be payable in accordance with the sickness benefit provided if the employee has completed the mandatory period of contribution. In case the employee has not completed the mandatory contributory period of 90 days, he is only entitled to medical benefit and not ESI leave with wages. 

ESI Corporation (“ESIC”) has issued a press release on 29th April 2021 clarifying that insured person or his family members if infected by SARS-COV-2 are entitled to avail free treatment from the ESI hospital[4]. They may also avail treatment in any private institution and claim reimbursement of the expenditure incurred by them for the treatment. Further, with regard to cash benefit, ESIC has clarified that in case the insured person abstains from his work on account of being infected with SARS-COV-2, he can claim sickness benefit for his period of absence basis his entitlement. Sickness benefit is paid at the rate of 70% of the average daily wages for 91 days.

While SARS-COV-2 has not been declared as an occupational disease so far, the benefits provided for an occupational disease is provided to an employee if he contracts Covid. Under such circumstances, it becomes even more important to evaluate the necessity whether SARS-COV-2 to be recognised as an occupational disease or not. The answer lies with an important factor, i.e., vulnerability of workers to SARS-COV-2 while being at work.

Sectors vulnerable to SARS-COV-2

Front line workers (“FLW”) such as healthcare workers, police officers, drivers, pilots,  municipal workers etc., are likely to face the highest risk of being exposed to SARS-COV-2. Most of the FLW’s, as a result of the nature of their occupation have to work in close contact with infected patients, increasing their likely hood of being exposed and infected with the virus. Unfortunately, as many as 734 doctors have lost their life in the year 2020 alone in their line of duty[5]. Nearly 21 pilots have scummed to SARS-COV-2 during the second wave[6].

Comparative analysis[7]:

Countries such as Finland, Malaysia, South Africa, etc., have recognized SARS-COV-2 as an occupational disease across all sectors irrespective of the workers being FLW. As a result of this workers can claim compensation for SARS-COV-2 under the respective applicable rules in regard to occupational diseases of each country. On the other hand, countries such as France, Germany, Mexico, Portugal, United States of America and Switzerland have primarily recognized SARS-COV-2 as an occupational disease for health sector workers owing to fact that the risk level is exponentially higher for staff working in hospitals, pathological laboratories, etc., who come into direct contact with infected persons or objects in the course of their work. Whereas in countries like India, United Kingdom, SARS-COV-2 qualifies as an occupational disease on a case-to-case basis.

Conclusion:

When countries begin to loosen restrictions and march towards near normal life, there is an increased risk of being exposed to SARS-COV-2 across sectors, specifically those with respect to FLW. In light of above, the need of recognizing SARS-COV-2 along with other endemic and pandemic as an occupational disease specifically with respect to healthcare sector becomes extremely important in order to safeguard the interests of our doctors and medical staff.

Separately, those not falling under the ambit of FLW, an amendment maybe brought about with the existing benefits provided under ESI in order to protect them. This will aid the country to be better prepared with respect to its workforce for such health emergencies in times to come.  

It may also be prudent to bring  SARS-COV-2 or COVID-19 as well as other endemic and pandemic under the definition of occupational diseases under the Employee’ Compensation Act, so as to ensure some coverage to FLWs where the disease is truly more likely to spread due to occupation.

– Devaiah KG,

Advocate & Principal Associate

Share This Post

Share on facebook
Share on twitter
Share on linkedin

Leave a Comment

Your email address will not be published. Required fields are marked *

Share:

Share on facebook
Share on twitter
Share on linkedin

More Posts

Scroll to Top

B. Chandrashekar Shetty - Advocate

Mr. Chandrashekar Shetty is a Senior Labour Law Compliance Auditor at BCP Associates and has audited multiple client companies across India. He is also a member of our senior legal advisory practice. Previously he has worked as Deputy Controller, Manager-Industrial Relations and Industrial Relations Officer in KPTCL, Bangalore for more than 30 years. Prior to this, he has dealt with Legal, Personnel and IR matters including Wage Settlements, Grievance Machinery, Manpower Study and Social Security Compliances for about 10 years. He is a Faculty member of Labour Law, HRD Centre, KPTCL Bangalore.

Mr. Shetty holds a B.Com. and L.L.B. degree, Post-Graduate Diploma in Business Administration, Diploma in Public Relations from Bangalore University and PG Diploma in Industrial Relations & Personnel Management from Bharatiya Vidya Bhawan. He is enrolled as Advocate in Karnataka Bar Council and is a Govt. Arbitrator of Chit Funds in Karnataka.

S Venugopal Rao

S Venugopal Rao is an experienced labour law and service matters expert and is a member of the senior advisory team at BCP Associates. Having joined the chambers of Mr. B C Prabhakar in 2012, he is knowledgeable and well versed in multiple employment and labour law topics. S Venugopal Rao holds a Bachelor’s degree in Science from Karnataka University, Dharwar and Bachelor of Law from Bangalore University. He enrolled as advocate in Karantaka State Bar Council in 1976. He joined the chamber of Sri. Kolachalam Srinivasa Rao a leading civil advocate. After practicing for 6 years at Ballari, he joined Orient Paper Mills, Orissa (of G P Birla Group). He was designated as Manager (Law) under the Factories Act in 1995. In 1999, he joined Andhra Pradesh Paper Mills Rajahmundry as Manager Legal and was subsequently elevated as Dy. General Manager (Legal). As Factory Manager & Legal Head, he oversaw compliance of Factories Act and Rules there under towards safety, health and welfare, including compliance under Pollutions and Environmental laws and Explosives Act, etc. Additionally, he is well acquainted with Environment Management System ISO 14001: 2004, Occupations, Health and Safety Series 18000:1999. As Legal head in APPM he has briefed and appeared along with Senior Advocate before Appellate Authority constituted under Water (Prevention & Control of Pollution) Act. He retired from the services of Andhra Pradesh Paper Mills in 2011. As legal head he has handled important cases both in Labour and Civil and has experience in drafting and vetting Contracts, Agreements, Lease Agreement, Conveyance Deeds, , Affidavits and scrutiny of several legal and other documents, Preparing and settling Petitions, Appeals, Plaints, Written Statements, Rejoinders, Affidavits and Written Arguments etc. for submission/pleadings for various legal proceedings.

C K Devappa Gowda - Advocate

C.K. Devappa Gowda (CKD) is an Advocate and Labour Law expert. He holds a Bachelor’s Degree in Science from the University of Mysore and a Degree in Bachelor of Law from Bengaluru respectively. He also holds a Diploma in Social Service Administration from the National Institute of Social Science, Bengaluru. After completing his studies, he had enrolled as a Advocate and initially practiced in the Civil Code attached to the office of BCP. He then worked as Personnel Officer in Chemicals and Textile Manufacturing Industries for 5 years. Thereafter took up employment in one of the largest Public Sector Bank. He has worked in different parts of the country and has extensive experience in the cross country IR domain. The significant part of his service was at corporate level overseeing and implementing HR policies and practices and management of IR. He has been a member of personnel committee of Indian Bank Association. After retirement from service, Mr. Gowda has been working with Mr. BC Prabhakar’s firm for the last 12 years. He has expertise in all areas of people management, drafting of documents relating to service matter including the settlements under the ID Act. He has dealt with all employment laws including appearance before the Courts, Tribunal and Authorities under the different Labour Laws. Mr. Gowda is one of the senior Labour Law experts at BCP Associates.

Srijatha Ghosh - POSH Specialist & Advocate

Srijata Ghosh serves as external member on the Internal Committee of several Companies across various sectors. She handles all kinds of POSH related matters including investigations and inquiries. She provides Training on Sexual Harassment across all verticals for Managers and Senior Management, General Awareness for all employees and Internal Committee members on the legislation (The Sexual Harassment of Women at Workplace Prevention, Prohibition and Redressal Act, 2013). She also formulates Policies for Prevention of Sexual Harassment at Workplace (“POSH”) and advises Companies on setting up of their Internal Committees. Srijata is involved in providing Legal Advisory services on POSH and other labour law matters for various clients.

In her previous experience, she has extensively dealt with End-to-End Contract Management, Due Diligence, POSH Compliances, Legal Advisory, etc. Srijata worked with Companies like Accenture India Private Limited, Quess Corp., Capgemini Business Services (India) Limited and Pramata Knowledge Solutions Private Limited. Srijata has handled varied legal issues including drafting, vetting and negotiation of contracts, drafting policies of various organizations. She has resolved issues relating to employment laws and has worked closely with the HR teams. She has provided legal advisory services to senior management. She was also associated with Kolkata High Court in counselling clients with legal matters such as Property, Due Diligence etc. Srijata has worked in an LPO Service Firm, Manthan Legal Services Private Limited for Legal Research, depositions, medical summaries, demand drafting etc.

Srijata completed her B.A.LL.B from M. S. Ramaiah College of Law, Bangalore University in 2009. Srijata is a member of the Karnataka Bar Council since 2010. She is also a member of the Gender Sensitivity Sub Committee of Karnataka Employer Association (KEA).

Caroline Lobo - POSH Specialist & Advocate

Caroline Lobo has been with BCP Associates for the past 2+ years. She has been handling matters and Inquiries related to the POSH Act including conducting inquiries and trainings/awareness programmes for Senior Management, employees as well as members of the Internal Committee on the POSH Legislation (The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Act”) to address Workplace Harassment of Women. She is a member of the Internal Committee for many varied companies and organisations and has reviewed and scrutinized numerous hearings and inquiries on matters relating to sexual harassment at workplace.

She has also handled matters relating to employer-employee related Enquiries, wherein she has reviewed and conducted hearings and enquired into the matters and has guided the Internal Committee and provided guidance in providing recommendations to the management. She is also a Member of the Gender Sensitivity Sub-committee of Karnataka Employer Association (KEA).

Prior to joining BCP Associates, Caroline has has a wide range of experience in corporate, commercial and contract law, mergers and acquisition and has undertaken drafting, vetting, negotiating and finalizing legal and commercial transactions. She started her career in litigation then moved onto the Corporate sector. In the span of 13 years, she has worked at Chambers of Advocate Jayashree Murali, Krishnamurthy and Co. Legal Consultants, Colt Technology Services and Oracle India Pvt. Ltd. She always had a keen interest in Women and Child related issues. She has worked with Child Welfare Committee and NGOS’s. In addition, she has worked with Swasthi Health Resource and Centre, where she was the External member to the Internal Committee (IC). She worked closely with the committee in strategizing, planning, reviewing and implementing the assigned tasks, which included building material to raise awareness against sexual harassment at workplace. Further, she has been involved in conducting inquiries into matters related to sexual harassment at workplace.

Caroline earned her Law degree from University Law College, Bangalore, from where she graduated in the year 2005.

Manoj Kumar – Senior Associate

At BCP Associates, Manoj Kumar is involved in managing and conducting labour law compliance audits of principal employer and contractors. He is also involved in client co-ordination and conducting labour law training programs for vendors. He has conducted on-ground labour law audit for factories. Manoj also provides support in advising vendor clients on labour law queries. He completed B.A., LL.B. from BMS College of Law, Bangalore in 2016

Rashmitha Venkatachalam Das - POSH Specialist & Advocate

Rashmitha Venkatachalam Das is the External Member of the Internal Committee of several reputed Organizations across various sectors. Handling complex inquiries has been her forte and she is extremely passionate about it. She is actively involved in providing Training on Sexual Harassment (Prevention, Prohibition and Redressal) Act, 2013 across all verticals for Managers and Senior Management, General Awareness for all employees and Internal Committee members. Rashmitha possesses capabilities in delivering sessions in Hindi and Kannada, in addition to English. She has formulated Policies for Prevention of Sexual Harassment at Workplace (“POSH”), advised companies on setting up of their Committee. Rashmitha is involved in providing Legal Advisory services on POSH for various clients spread across diverse sectors. She has also been handling domestic enquiries for various clients. 

Rashmitha possesses experience both at Law Firms and Corporates in various capacities. She started her career at Krishnamurthy and Co, Legal Consultants and then moved on to work as an In- House Legal Counsel with Companies such as Biocon Limited, Columbia Asia Hospitals Private Limited, Adecco India Private Limited. With a long stint in the Corporate side, Rashmitha decided to pursue further education in Law with a specialization in Labour and Employment Laws. She has rich experience in drafting, vetting and negotiation of various types of contracts, providing legal opinions and has driven the team in formulating process and procedures and their implementation. She has drafted several employment related policies in Corporates. Rashmitha has been a part of various key committees in Organizations and assisted committees in scrutiny of documents pertaining to human organ transplant as well as clinical trials.

Rashmitha holds an LL.M. in Labour and Employment Laws from University Law College, Bangalore, which she completed in the year 2018 with Two Gold Medals. She is also a Rank Holder at the University. She has completed BA, LL.B. from Bangalore Institute of Legal Studies, Bangalore University in the year 2009. Rashmitha is a member of the Karnataka Bar Council since 2009 and also a member of the Gender Sensitivity Sub Committee of Karnataka Employer Association (KEA).

Manisha Vidyadhar – Senior Associate

At BCP Associates, Manisha Vidyadhar is involved in managing and conducting labour law compliance audits of principal employer and contractors. She is also involved in client co-ordination and conducting labour law training programs for vendors. She has conducted on-ground labour law audit for factories. Manisha also provides support in advising vendor clients on labour law queries.  She completed B.A., LL.B. from BMS College of Law, Bangalore in 2016.

Amrutha Ananth – Senior Associate

At BCP Associates, Amrutha Ananth is involved in managing and conducting labour law compliance audits of principal employer and contractors. She is also involved in client co-ordination and conducting labour law training programs for vendors. She has conducted on-ground labour law audit for factories. She also provides support in advising vendor clients on labour law queries.

Amrutha is also part of the labour law advisory and HR Policy practice and is actively involved in drafting opinions on various aspects of labour laws and formulate and review employment policies and procedure.

Amrutha completed B.A., LL.B. from Christ University, Bangalore in 2015. She is also a semi-qualified Company Secretary.

Sunil Arya – Principle Associate

At BCP Associates, Sunil Arya is part of the labour and employment law advisory and HR Policy practice and is actively involved in drafting and reviewing of employment contracts, opinions, HR policies, employee handbook, show cause notice, etc. for various clients spread across diverse sectors. He conducts training on labour and employment laws. Sunil is also involved in labour law compliance audits of principal employer and contractors and has conducted on-ground labour law audit for factories. In addition, he is engaged in knowledge creation and management of the firm and keenly writes on developments in labour and employment laws.

Prior to joining BCP Associates, Sunil has 10 years of post-qualification experience in diversified portfolios of advisory, drafting, policy analysis and dispute in the domains of contracts, general civil matters, employment law, competition law and construction arbitration matters. Sunil started his career as a Law Researcher in Delhi High Court. He moved on to be part of regulatory analysis team of CIRC, a unit of CUTS International. In addition, Sunil has been part of legal team of Jindal India Thermal Power Limited. He has also taught competition law, tax law and investment law at VIPS, Delhi.

Sunil holds LL.M. from The Indian Law Institute, Delhi. He is First Rank Holder in his thesis. He completed B.A, L.L.B. (Hons.) from I.P. University, Delhi. He also holds First Rank in P.G. Diploma in Competition Policy and Laws from The National Law University, Delhi.

Chandrakala K A – Principle Associate

At BCP Associates, Chandrakala has 12+ years of experience in conducting and managing labour law compliance audits of principal employer and contractors. She is also involved in co-ordination with many clients. She has conducted on-ground labour law audit for factories. She also provides support in advising vendors on labour law queries. Chandrakala is actively involved in research and providing valuable inputs to the firm pertaining to updation in labour law audit function.

Chandrakala started her career in litigation in chamber of Sri. Ashok where she was involved in drafting, pleading and appearance before Karnataka High Courts and lower courts on the criminal side.

Chandrakala completed B.A in Arts from Kuvempu University, Shimoga in 2003 and LL.B. from Mangalore University in 2006.

X