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.
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.
The above definition has been replicated under Section 36 of the Code of Social Security, 2020.
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. 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. Nearly 21 pilots have scummed to SARS-COV-2 during the second wave.
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.
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