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Being a new disease, COVID-19 is not only posing challenges to the medical professionals treating it, but has also compelled world leaders and law makers to devise new strategies to counter its far-reaching consequences.
As a pandemic of this nature has created unprecedented challenges in terms of ensuring order, availability of medical facilities, food, social and financial security for all, new sets of rules and regulations are being formulated to steer through this uncharted territory.
Some countries have enacted new legislation specifically to deal with the COVID-19 pandemic and address its severe impacts.
United States of America
A prominent legislation that has been enacted is the Families First Coronavirus Response Act, which is in effect from April 1 to December 31, 2020. The Act contains several provisions that provide for free Coronavirus testing, food assistance, paid leaves, unemployment benefits, protection for front-line health workers and additional funding to states.
Under Division A, the Act makes provisions for specific sums of money being appropriated from the Treasury for a food and nutrition program for women, infants, children, ageing and the disabled, for commodity assistance program, for Public Health and Social Services, and for different other health programs.
Division B provides for grant of various waivers, including waivers under different existing programmes. Division C creates provision for emergency family and medical leave, its need and duration, and pay and job protection during such leave period. Division D provides for payment of unemployment compensation.
Division E makes provision for emergency paid sick when an employee is unable to work or telework due to the reasons mentioned, which includes self-quarantine or isolation or experiencing symptoms of Coronavirus and seeking a medical diagnosis. It also covers child care or care of an individual who is subject to quarantine or isolation.
Division F makes provision for healthcare. For the insured, the health insurance issuer shall provide coverage (without imposing any cost sharing) towards diagnosis, items and services related to it. It also makes provision for waiver of cost sharing under the medicare program and coverage for uninsured individuals by the states with 100% federal medical assistance.
Division G is with respect to tax credits for paid sick leave and paid family and medical leave. It provides for payroll tax credits for qualified sick leave wages and family leave paid by an employer and an individual tax credit for qualified sick leave and family leave for self-employed individuals. Division H is with respect to budgetary effects.
The UK Coronavirus Act, 2020 and the The Health Protection (Coronavirus) Regulations 2020 are perhaps the most comprehensive laws on date. Though the provisions of the Act apply to England, Wales, Scotland and Northern Ireland, the Regulations are applicable only to England. Realizing that this is a long battle, the provisions of the Act have been made applicable for an initial period of two years, extendable with the assent of Parliament.
The legislation invites participation from the public and guarantees benefits and protection for their service to the Kingdom in this time of need. In addition to medical professionals including doctors, nurses, midwifes etc, the legislation invites emergency social workers to register and provide their services.
To ensure their protection and to incentivize volunteering, the legislation provides for emergency volunteering leave and payments to emergency volunteers by way of compensation in the form of loss of earnings and for travel and subsistence.
For the people infected with COVID-19, the legislation makes provision for payment by employers of statutory sick pay, to be funded by Revenue and Customs Department to such extent and in the manner prescribed by the Department.
Further, the legislation also makes modifications to the Mental Health Act, 1983 to ensure that the persons detained under the said Act are not prejudiced and special care is given to them as required.
Importantly, the legislation makes provision for seeking relevant information relating to the food supply chain and also prescribes penalties for failure to comply and provide information with respect to the same.
Giving benefit to the general public, and to ensure isolation and a stay at home policy, the legislation protects persons from eviction and forfeiture of residential and business tenancies due to non-payment of rent during this period.
In addition to the above, duty of local authorities to assess the financial resources and to meet the needs of care and support, including for patients discharged from hospitals, have been prescribed.
To ensure public order, the Parliament, apprehending a probable shortage of persons able to carry out functions conferred on Judicial Commissioners due to the result of the effects of Coronavirus, empowers the Secretary of State to appoint persons to carry out its functions.
The legislation further provides for live links in eligible criminal proceedings including bails, appeals, extradition, contempt of court, imposition of imprisonment, detention and sentencing etc. as defined therein.
The legislation clearly defines the prohibition and limitation on the use of live links and even permits public participation through broadcasting in proceedings conducted by video or audio.
The legislation also grants powers in relation to potentially infectious persons and clearly spells out the orders that may be passed by the court in relation to persons, groups or premises which are infected or contaminated. Persons not complying with orders are liable for prosecution and penal action.
By virtue of the legislation, elections and referendums have also been postponed to 2021.
The COVID-19 (Temporary Measures) Act, 2020 is perhaps the most commercially inclined legislation. The Act provides for temporary relief from coercive actions and prohibits commencement or continuation of an action in court or arbitral proceedings for inability to perform scheduled contracts due to COVID-19. This is subject to the contracting party serving a notification for relief as prescribed under the Act, and determination by an assessor upon challenge.
In addition, all proceedings pending before a court, arbitral tribunal or any other proceedings must be stayed on the lodgement of a copy of the notification for relief. While protecting one contracting party, the Act extends the period of limitation for taking action in relation to the contract.
Apprehending the disputes that may emerge for construction and supply contracts, the Act stipulates that after the issuance of notification for relief, a performance bond or equivalent may not be called upon earlier than seven days before the date of expiry.
The Act further provides for extension of performance bond on the beneficiary’s application.
For tourism related contracts, including airlines, transport, dining, tours etc, which is one of the most affected industry globally, any non-refundable deposit must be refunded unless determined otherwise by an assessor. Failure to comply can result in conviction and/or fine.
Pertinently, for the purpose of calculating liquidated damages payable under contracts, the period of default due to the COVID-19 is to be disregarded. As a temporary measure for financially distressed individuals, firms and other businesses, the pecuniary limit and time lines under the bankruptcy, company, insolvency and other laws stand enhanced substantially.
Further, the Act provides remission in property tax, which has to be passed on the tenant.
To control and prevent the spread of COVID-19, by way COVID-19 (Temporary Measures) (Control Order) Regulations, 2020, every individual is required to stay at his or her residence in Singapore, with the exception of persons engaged in essential services.
There is also a complete ban on a person meeting another individual for any social purpose, use of sports or recreation facilities etc. Alternative arrangements for meetings have also been prescribed.
For conduct of court proceedings, live video or live television link can be used for purposes such as recoding of evidence of witness, presence of accused etc. subject to conditions stated therein.
India has not enacted any new legislation specifically on COVID-19, as has been done by aforementioned countries. The Central government has invoked the provisions of Disaster Management Act, 2005. However, the scheme of the Act is in the nature of policy framework facilitating formulation of policy, plans and guidelines for disaster management.
The Act establishes National Disaster Management Authority (NDMA), with the Prime Minister as the Chairperson, and authorities at the state and district level. It lays down the power and functions of the authorities, the measures that can be taken by the government, and the responsibility of the officials designated for effective implementation. It also contains penal provisions, for obstruction, false claim or warning, and misappropriation of money or material, among others.
In addition, state governments such as NCT of Delhi have invoked the provisions of a colonial legislation called the Epidemic Diseases Act, 1897, which was then enacted to counter the outbreak of the bubonic plague in Bombay between 1896-97. It is a concise Act comprising only four sections.
The crucial provision is Section 2, which in case of an outbreak of any dangerous epidemic disease, empowers the state governments to take such measures and prescribe such temporary regulations to be observed by the public which are deemed necessary to prevent the outbreak of such disease or the spread thereof. It further authorizes inspection and segregation of suspected persons.
However, the aforesaid existing Acts do not specifically lay down the provisions to counter a pandemic like COVID-19 and do not provide safeguards and specific mechanisms to deal with the unprecedented challenges posed by it.
The Indian government should consider introducing a more structured legislation that can be uniformly implemented across the country.
Such an Act, apart from safeguarding and ensuring basic necessities in the time of a pandemic, such as medical, healthcare and food assistance, should also have other provisions to provide financial and social support to the persons in despair.
Like the legislation in the UK, public participation and volunteering should be encouraged and incentivized. In a country like India with vast population, it not possible for the government authorities which are working to full capacity, to reach every person in need, without public-private participation.
There should be protection from termination of employment and provisions for payments of wages and salaries during the lockdown period or if the employee or any of their family members are diagnosed from the pandemic, like the legislation in USA.
Provision should also be incorporated for moratorium on payment of rent and interest on loan and for protection from eviction, etc. The timelines for statutory compliance should also stand extended automatically.
Further, the government should mitigate the slowdown in the economy by offering tax rebates, tax credits and deductions. The government should also consider incorporating specific provisions for sectors such as construction and infrastructure, real estate, tourism and hospitality etc. as these sectors are the worst affected due to the lockdown. In fact, some may suffer losses during this period which may not be capable of being remedied or compensated.
Taking a cue from the legislation in Singapore, India should consider making transparent rules regarding the performance bonds and the termination and suspension of contracts which are affected by the COVID-19 outbreak.
There is also a dire need to introduce new provisions for detention and punishment of the defaulter, coupled with simpler and expeditious procedure, rather than the cumbersome procedure of the law as it stands today.
These measures will not only ensure that the country and its citizens are protected from the outbreak of the COVID-19 pandemic, but will also counter the challenges and ramifications, and will help in reduction of disputes and resurrection of the economy.
The authors are Advocates practicing before the Delhi High Court and other courts and Tribunals at New Delhi.