As we previously reported, in response to the COVID-19 pandemic, the Indian government invoked special provisions of the Disaster Management Act, 2005 (the “DMA”) to implement a series of orders under the DMA (“Orders”) imposing a nationwide lockdown. The Indian national lockdown went into effect on March 25, 2020 and was extended several times, until May 31, 2020.

The initial lockdown Orders included strict directives for employers. The employment provisions of the orders (the “Employment Provisions”) prohibited employers from terminating any employees or contract labor during lockdown, except for disciplinary reasons. In addition, the Employment Provisions barred employers from reducing employees’ wages. The Employment Provisions also addressed specific issues that affected employers and employees during the lockdown, including (i) maintenance of the workforce, (ii) prohibition against forced use of paid leave or taking of unpaid leave, (iii) permissibility of medical checks, and (iv) sick time for employees with COVID-19.

On May 17, 2020, the Employment Provisions were withdrawn by the Indian federal government. As a result, employers were no longer required to continue to pay employees’ full wages during the national lockdown and no longer faced liability for failing to do so. Several petitions challenging the legality of the Employment Provisions are currently pending in the Indian Supreme Court.

On May 30, 2020, the Indian government issued new guidelines (the “New Guidelines”), effective June 1, 2020, for the country’s multi-phase re-opening plan (the “Plan”). The New Guidelines provide the minimum requirements for India’s re-opening. State governments may impose additional restrictions as they deem necessary.

On June 8, 2020, India will enter Phase I of the Plan, under which places of worship, hotels, restaurants, and shopping malls will be permitted to re-open. The New Guidelines provide the following specific directives to which employers must adhere in operating the re-opened workplaces:

• Follow Ministry of Health and Family Welfare standard operating procedures for preventing the spread of COVID-19;

• Promote remote work, where feasible;

• Ensure social distancing measures by staggering business hours, work shifts, and breaks;

• Provide for thermal scanning, handwashing, and/or hand sanitizing in all entrances, exits, and common areas;

• Practice frequent sanitization of the entire workplace, including common facilities and highly-touched surfaces; and

• Promote and facilitate employees’ installing Arogya Setu, a contact-tracing mobile application developed by the Indian government. Note that at least one locality, Noida, a suburb of Delhi, requires all residents to download Arogya Setu. Failure to comply with this requirement may result in up to six (6) months in jail.

Although the Indian government has not finalized a date to enter Phase II of the Plan, schools, colleges, and educational and training institutions likely will be permitted to re-open sometime in July 2020.

The New Guidelines also provide for further designation of red, orange, or green zones, which are demarcated depending on the concentration of COVID-19 cases in those areas. “Containment” and “buffer” zones will be designated within the red and orange zones by district authorities, after taking into consideration the guidelines of the Ministry of Health and Family Welfare.

Currently, several businesses must continue to remain closed, and certain activities that draw crowds may not occur. Such restricted industries and activities include the following:

• International air travel by passengers;

• Operation of the Metro Rail;

• Movie theaters, gyms, swimming pools, bars, and assembly halls; and

• Events that draw large groups of people, such as social, political, sporting, entertainment, academic, and religious functions.

The Indian government will consider re-opening these businesses and activities in Phase III of the Plan, based upon the government’s assessment of the COVID-19 pandemic at that time.