- Eklavya Vasudev
Background overview and objectives:
One of the prime considerations for businesses that are reopening in the post-COVID lockdown is adequate preventive safety and sanitation measures. This is because COVID-19 spreads through droplets produced from coughing and sneezing by an infected person. While some considerations might vary depending on the type and scale of business, a common concern would be observance of hygiene recommendations as per recommended guidelines and ensuring appropriate social distancing. This in turn will depend on available facilities and their management. The objective would be to ensure timely detection of COVID-19 in case any personnel is infected and second would be to ensure that the infection does not spread to others. Besides the health concern, the primary legal concern here is compliance, since observance of issued guidelines is mandatory and a breach would involve penalties. Further, since the lockdown has been in place for several weeks, it is imperative that businesses, especially the ones dealing with chemicals and flammable materials follow uniform guidelines in order to minimise risk to their employees and the general public as well as minimize the chance of incurring liability.
Context (How are businesses and their employees affected)
The context is the quick learning, investment, adaptation and adherence to the new safety practices mandated by the Government. This affects businesses’ viability and production (since non-adherence can result in penalties and temporary shutting down) and affects employees (as non-adherence can result in health + consequent financial risks).
They key solutions for reopening businesses then are the following:
Adequate cleaning, sanitation of the workplaces, especially frequently touched surfaces.
Employees must use reusable face covers.
Leave sanctioning authorities are required to sanction leaves for any employee who develop and complain of respiratory distress symptoms.
No gathering of more than 5 persons in spaces in office including the canteen.
All personnel must be screened daily at entrance for symptoms including fever, through infra-red thermometers.
In addition, for industrial establishments, the following safety measures are to be undertaken:
Employees working on specific equipment to be trained to identify abnormalities like strange sounds, smells, exposed wires, smoke and other potentially hazardous signs signalling need for immediate maintenance or shutdown.
Raw materials must be stored safely and it must be ensured that there is no spillage, wear and tear of storage facilities.
Harmful (HAZMAT) chemicals must be checked for chemical stability before making use for industrial purposes.
Industries must ensure adequate ventilation in storage rooms with properly fitted valves and conveyor belts.
Roofs of storage areas must be checked to avoid harmful substances from contaminating nearby areas.
a. What are the sanitation measures required by law before reopening?
The measures include round the clock sanitisation of premises, temperature checks of all employees twice daily, provision of face shields, masks and PPE equipment, physical distancing by erection of barriers on work floors and eating areas and ensuring that tools, etc. are not shared.
b. There are no clean water, toilet facilities in my factory due to disuse during the lockdown. What are the immediate actions I should take?
Soft-hygiene services like water, soap, toilets, sanitisers are necessary as well as access to electricity and clean drinking water. Providing gloves, masks and hand sanitisers at all factories and manufacturing units is mandatory.
c. Do all my employees and support staff have to wear a mask inside the factory/business premises? How should we sanitise our machinery?
As far as possible, masks must be worn at all times and a regular sanitisation routine must be followed every 2 hours. Common areas that include lunch rooms and common tables will have to be wiped clean with disinfectants after every single use. All boxes and wrapping brought in factory premises must be sterilised. Finished good must be isolated and sanitised as appropriate.
d. My factory uses several hazardous chemicals which have been stored for the entire period of lockdown. What is the safety protocol I need to follow before reopening?
Harmful (HAZMAT) chemicals must be checked for chemical stability before making use for industrial purposes. Employees working on specific equipment should be trained to identify abnormalities like strange sounds, smells, exposed wires, smoke and other potentially hazardous signs signalling the need for immediate maintenance or shutdown.
e. Will I incur any civil or criminal penal liability if I do not follow the required measures?
Yes. In case of non-adherence, action can be taken against you under Section 51-60 of the Disaster Management Act, 2005 and under Section 188 of the Indian Penal Code. Other legal provisions may also be applicable depending on facts. Although States have discretion in imposing liability these are the standard penalties which will apply as recommended in a letter by the Home Secy. to the States. The best way to avoid this situation is to ensure observance of these measures to the best of your knowledge. As long as you exercise due diligence to ensure observance of the guidelines, you should be protected from liability.
For further information, you can refer to:
1. Order dated May 1, 2020 for guidelines issued by MHA to be valid from May 5, 2020 for a period of two weeks (https://www.mha.gov.in/sites/default/files/MHA%20Order%20Dt.%201.5.2020%20to%20extend%20Lockdown%20period%20for%202%20weeks%20w.e.f.%204.5.2020%20with%20new%20guidelines.pdf)
2. Guidelines dated May 9, 2020 issued by NDMA on restarting manufacturing industries after lockdown period (https://www.ndma.gov.in/images/covid/Guidelines-for-restarting-industrial-units-after-lockdown.pdf)
3. List of all NDMA orders and advisories related to COVID-19 (https://www.ndma.gov.in/en/media-public-awareness/ndma-orders-advisories.html)
Note: The MHA has noted that in case any industry has difficulty in handling backward linkages should approach the local district magistrate/administration for specific support. See: https://www.financialexpress.com/india-news/mha-guidelines-on-re-opening-industry-treat-first-week-as-trial-run-and-other-instructions-to-industries/1953976/
Eklavya Vasudev is a lawyer based in Delhi and is interested in Constitutional Law and Environmental Rights.