The OSH Code, 2020: A Primer

A revised Occupational Safety, Health, and Working Conditions (OSH) Code enacted in September 2020 replaced its 2019 version. It applies to workers engaged in factories, mines, plantations, motor transport sector, bidi and cigar workers, contract, and migrant workers. In this article, we cover key features of the OSH Code.

For specialist advice regarding doing business in India and/or training to ensure your organization is compliant under the yet-to-implemented new labor codes, please feel free to contact our professional service advisors at india@dezshira.com.

While the four new labor laws—Occupational Safety, Health and Working Conditions Code; Code on Wages; Industrial Relations Code; and Social Security Code—have been passed by Parliament and notified by the government, they have not yet come into force.

The OSH Code subsumes 633 provisions of 13 major labor laws into one single Code with 143 provisions. The laws that have been subsumed are:

• The Factories Act, 1948
• The Contract Labor (Regulation and Abolition) Act, 1970
• The Mines Act, 1952
• The Dock Workers (Safety, Health and Welfare) Act, 1986
• The Building & Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996
• The Plantations Labor Act, 1951
• The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979
• The Working Journalist and other News Paper Employees (Conditions of Service and Miscellaneous Provision) Act, 1955
• The Working Journalist (Fixation of Rates of Wages) Act, 1958
• The Cine Workers and Cinema Theatre Workers Act, 1981
• The Motor Transport Workers Act, 1961
• The Sales Promotion Employees (Conditions of Service) Act, 1976
• The Beedi and Cigar Workers (Conditions of Employment) Act, 1966

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Coverage

The Occupational Safety, Health, and Working Conditions Code, 2020 emphasizes the health, safety, and welfare of workers employed in various sectors like industry, trade, business, manufacturing, factory, motor transport undertaking, building and other construction work, newspaper establishments, audio-video production, plantation, mine and dock-work, and service sectors.

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This Code is applicable in the following areas:

• Factories having 20 or more workers where manufacturing process is being carried on with the aid of power.
• Factories having 40 or more workers where the manufacturing process is being carried on without the aid of power.

This Code does not apply to the offices of the Central Government, offices of State Governments, and any warship of any nationality. However, it must be noted that it does apply to contract labor employed through contractors in the offices where Central Government or State Government are the principal employer. The Code consists of schedules, which include a list of industries involving hazardous work, a list of matters where standards are to be followed with respect to the health and safety of workers, and a list of notifiable diseases for which communication shall be made to concerned authorities.

License and registration

The establishments covered by the Occupational Safety, Health and Working Conditions Code, 2020, are required to register within 60 days (of the commencement of the Code) electronically to the registering officers, appointed by the Central or State Government. Further, some establishments, such as factories and mines, and those hiring certain categories of workers like beedi and cigar workers – may be required to obtain additional licenses to operate.

Key features of the OSH Code, 2020

Key definitions under the Code

Some of the important definitions amended by this Code are as follows:

Contract labor: Contract labor is defined as a worker deemed to be employed in/in connection with the work of an establishment when he is hired for such work through a contractor, with or without the knowledge of the principal employer. The definition excludes any worker (other than a part-time employee) who is regularly employed by the contractor for any activity of their establishment and such worker’s employment is governed by mutually accepted standards of conditions of employment and gets periodical increment in pay and other welfare benefits.

Employee: Employee means a person employed (whether expressly or implied) on wages by an establishment to do any skilled, unskilled, manual, operational, supervisory, managerial, administrative, technical, clerical or other work. The definition of employee has been made consistent in all the new codes.

Employer: Employer is defined to be a person who employs, whether directly or through any person, or on their behalf, or on behalf of any person, one or more employees in their establishment, and includes, inter alia, the person/authority that has the ultimate control over the affairs of the establishment and contractor.

Establishment: An establishment is:
» Any place with 10 or more workers where any industry, trade, business, manufacturing, or occupation is carried on; or
» A motor transport undertaking, newspaper establishment, audio-video production, building and other construction work, or plantation with 10 or more workers;
» Factory in which 10 or more workers are employed; or
» A mine or port or vicinity of port where dock work is carried out.

Hazardous process: It means any process or activity in relation to specific industries (listed in the First Schedule of this Code), where, unless special care is taken, raw/intermediate/finished/bye-products, etc., as the case may be, would:
» Cause material impairment to the health of the persons engaged in or connected herewith; or
» Result in pollution of the general environment.

Principal employer: For the purposes of this Code, a principal employer is:
» Any person responsible for the supervision and control of the establishment where contract labor is employed or engaged; or
» The owner or the occupier of the factory and where a person has been named as the manager of the factory, the person so named.

Wages: As per this Code, Wages comprise of all remuneration, such as salaries, allowances, or otherwise, expressed in terms of money or capable of being so expressed – which would be payable to a person in respect of their employment, whether express or implied, or of work done in such employment and includes basic pay, dearness allowance, and retaining allowance, if any.
Further, it has been clarified that wages do not include:
» Bonus;
» Value of accommodation or light, water, medical attendance;
» Employer contribution towards any pension or provident fund;
» Conveyance allowance;
» Sum paid to employed person to defray special expenses;
» House rent allowance;
» Overtime allowance; and
» Gratuity.

Duties of the employer under the Code

Under the Occupational Safety, Health and Working Conditions Code, 2020, every employer is required to oblige with the following duties:

• Ensure that the workplace is free from hazards that cause or are likely to cause injury or occupational disease to the employees and comply with this Code and the Government’s directions on the same.
• Provide free annual health examination, free of costs to certain classes of employees.
• Provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of the employees.
• Issue letters of appointments to employees.
• Ensure that no charge is levied on any employee for maintenance of safety and health at workplace, including conduct of medical examination and investigation for the purpose of detecting occupational disease.

Provided that none of the following duties are in contravention to the above specified duties, this Code directs employers with respect to factories, mines, dock work, building and other construction work, or plantations to ensure:

• Provision and maintenance of plant and systems of work in the workplace that are safe and without risk to health.
• Arrangements in the workplace for ensuring safety and absence of risk to health in connection with the use, handling, storage and transport of articles and substances.
• Provision of such information, instruction, training, and supervision as are necessary to ensure the health and safety of all employees at work.
• Maintenance of all places of work in the workplace in a condition that is safe and without risk to health and the provision and maintenance of such means of access to, and egress from, such places as are safe and without such risk.
• Provision, maintenance or monitoring of such working environment in the workplace for the employees that is safe, without risk to health as regards facilities and arrangements for their welfare at work.

Duties and responsibilities of owner, agent, and manager in relation to mine

The owner and agent of every mine are jointly and separately responsible for making financial and other provisions and for taking such other steps as may be necessary for compliance with the provisions of this Code and the rules, regulations, bye-laws, and orders made thereunder, relating to mine.

Duties of designers, manufacturers, importers, or suppliers

Every person who designs, manufactures, imports or supplies any article for use in any establishment shall:

• Ensure so far as is reasonably practicable, that the article is so designed and constructed in the establishment as to be safe and without risk to the health of the workers when properly used. They must also carry out or arrange for the carrying out of such tests and examination in the establishment to make this provision effective.
• Take steps as may be necessary to ensure that adequate information will be available about:
  » Use of the article in any establishment;
  » Use for which such article is designed and tested; and
  » Any conditions necessary to ensure that the article, when put to such use, shall be safe, and without risk to the health of the workers.

Comply with such duties as the Central Government may, in consultation with the National Occupational Safety and Health Advisory Board, by regulations specify.

Further, this Code also specifies duties for those who manufacture, import, or supply any substance for use in any factory. They include:

• Ensuring that such substance when used in the factory does not make it unsafe or a risk to health of persons working in such factory.
• Carrying out or arranging for carrying out of such tests and examination in relation to such substance as may be necessary.
• Taking necessary steps to ensure that the information about the results of tests carried out in connection with the use of the substance is available in a factory along with conditions necessary to ensure its safe use and no risks to health.

Duties of architect, project engineer, and designer

The architect, project engineer or designer are responsible for any building or other construction work or the design of any project or part thereof relating to such building or other construction work. This Code specifies a certain set of duties for them as well. They must:

• Give due consideration at the planning stage to the safety and health aspects of the building workers and employees who are employed in the erection, operation and execution of such projects and structures.
• Pay adequate attention so as to not include anything in the design which would involve the use of dangerous structures or other processes or materials, hazardous to health or safety of building workers and employees during the course of erection, operation and execution.
• Take into account the safety aspects associated with the maintenance and upkeep of the structures and buildings where maintenance and upkeep may involve such hazards as may be notified by the appropriate Government.

Notice of certain accident, dangerous occurrences, certain diseases

Where at any place in an establishment, an accident occurs which causes death, or which causes any bodily injury by reason of which the person injured is prevented from working for a period of 48 hours or more immediately following the accident or which is of such nature as may be prescribed by the appropriate Government, then, the employer should send notice to such authorities, in such manner and within such time, in the prescribed manner.

Where a notice given relates to an accident-causing death in a plantation or an establishment relating to building or other construction work or any other establishment, the authority to whom the notice is sent should make an inquiry into the occurrence within two months of the receipt of the notice or if there is no such authority, the Chief Inspector-cum-Facilitator shall cause the Inspector-cum-Facilitator to make an inquiry within the said period.

Where any worker in an establishment contracts any disease specified in the Third Schedule of this Code, the employer of the establishment should send notice to such authorities, within prescribed timeline in the prescribed manner.

If any qualified medical practitioner attends on a person, who is or has been employed in an establishment, and who is, or is believed by the qualified medical practitioner, to be suffering from any disease specified in the Third Schedule of this Code, the medical practitioner should without delay send a report in writing to the office of the Chief Inspector-cum-Facilitator in the prescribed manner failing which shall be punishable with penalty which may extend to INR 10,000.

Rights and duties of the employees under the Code

Duties of the employees

Every employee at the workplace shall:

• Take reasonable care for the health and safety of themself and other persons who may be affected by their acts or omissions at the workplace.
• Comply with the safety and health requirements specified in the standards.
• Cooperate with the employer in meeting the statutory obligations of the employer under this Code.
• If any situation which is unsafe or unhealthy comes to their attention, as soon as is practical, report such situation to their employer or to the health and safety representative.
• Not willfully interfere with or misuse or neglect any appliance, convenience, or other thing provided at the workplace for the purpose of securing the health, safety, and welfare of workers.
• Not do anything, willfully and without reasonable cause, to endanger or potentially endanger themself or others.
• Perform such other duties as may be prescribed by the appropriate Government.

Rights of the employees

The Occupational Safety, Health and Working Conditions Code, 2020, provides that every employee must have the following rights:

• Obtain from the employer, information relating to the employee’s health and safety at work and communicate to the employer any concern regarding inadequate provision for protection of the employees’ safety or health in connection with the work activity in the workplace, and if not satisfied, to the inspector-cum-facilitator.
• If they have reasonable apprehension that there is a likelihood of imminent serious personal injury or death or imminent danger to health, they may bring this to the notice of the employer directly, and simultaneously bring the same to the notice of the inspector-cum-facilitator.
• The employee should note that once the existence of such imminent danger is established, the employer is obliged to take immediate remedial action and send a report of the action taken in response to the inspector-cum-facilitator.
• Even if the imminent danger / apprehension about the same by the employee(s) is not accepted by the employer, the employer must refer the matter to the inspector-cum-facilitator whose decision on the question of the existence of such imminent danger shall be final.

Relevant authorities under the Code

National and state-level Occupational Safety and Health Advisory Board

The OSH Code directs authorities to set up a National Occupational Safety and Health Advisory Board that will advise the federal government on matters relating to:

• Standards, rules, and regulations to be declared under the OSH Code;
• Implementation of provisions of the OSH Code; and
• Issues of policy relating to occupational safety and health and any other matters referred to it.

The OSH Code also provides for the constitution of a similar state-level advisory board.

Inspectors-cum-Facilitators

They are appointed by the appropriate Government and can inquire into accidents and conduct health and safety inspections. They are conferred special powers with respect to factories, mines, dock-works, buildings or other construction works, and oversee the prohibition of work in hazardous environments.

Safety committees and safety officers

The appropriate Government may require any establishment or class of establishments to constitute a Safety Committee consisting of representatives of employers and workers engaged in such establishment in every establishment that is a:

• Factory wherein 500 workers or more are employed; or
• Factory carrying on hazardous process wherein 250 workers or more are employed; or
• Building or other construction work wherein 250 workers or more are employed; or
• Mine wherein 100 or more workers, are ordinarily employed.

The employer shall also appoint such number of safety officers, who shall possess such qualifications and perform such duties, as may be prescribed by appropriate Government.

Responsibility of employer for maintaining health, safety, and working conditions

The employer is responsible for maintaining the health, safety, and working conditions for the employees as may be prescribed by the Central Government in the establishment. The Central Government may prescribe for providing all or any of the following matters in the establishment or class of establishments, namely:

• Cleanliness and hygiene;
• Ventilation, temperature, and humidity;
• Environment free from dust, noxious gas, fumes, and other impurities;
• Adequate standard of humidification, artificially increasing the humidity of the air, ventilation, and cooling of the air in work rooms;
• Potable drinking water;
• Adequate standards to prevent overcrowding and to provide sufficient space to employees or other persons, as the case may be, employed therein;
• Adequate lighting;
• Sufficient arrangement for latrine and urinal accommodation to male, female, and transgender employee separately and maintaining hygiene therein;
• Effective arrangements for treatment of wastes and effluents; and
• Any other arrangement which the Central Government considers appropriate.

Welfare facilities in the establishment

The employer is responsible to provide and maintain in their establishment such welfare facilities for the employees as may be prescribed by the Central Government, including:

• Adequate and suitable facilities for washing to male and female employees separately;
• Bathing places and locker rooms for male, female, and transgender employees separately;
• Place for keeping clothing not worn during working hours and for the drying of wet clothing;
• Sitting arrangements for all employees obliged to work in a standing position;
• Facilities of canteen in an establishment for employees thereof, wherein 100 or more workers including contract laborers are ordinarily employed;
• In case of mines, medical examination of the employees employed or to be employed in the mines, before their employment and at specific intervals;
• Adequate first-aid boxes or cupboards with contents readily accessible during all working hours; and
• Any other welfare measures which the Central Government considers, under the set of circumstances, as required for decent standard of life of the employees.

The Central Government may make rules to provide for the facility of a creche for the use of children of the employees under the age of six years. Such creche must be at a suitable location and distance, either separately or along with common facilities in establishments wherein more than 50 workers are ordinarily employed.

Hours of work and annual leave with wages

The OHS Code stipulates that an employee may not accrue more than 30 days of paid leave within a calendar year. Should an employee exceed this limit, the employer is responsible for compensating for the surplus leave days. However, this provision specifically excludes workers in managerial or supervisory roles.

Further, no worker shall be required or allowed to work, in any establishment or class of establishment for more than:

• Eight hours in a day.
• The period of work in each day shall be so fixed, as not to exceed such hours, with such intervals and spread overs, as may be notified by the appropriate Government.

In case of mines:

• The persons employed below ground in a mine shall not be allowed to work for more than such hours as may be notified by the Central Government in any day.
• No work shall be carried on below ground in any mine except by a system of shifts so arranged that the period of work for each shift is not spread over more than the daily maximum hours as notified.
• No person employed in a mine shall be allowed to be present in any part of a mine below ground except during the periods of work shown in respect of him in the register maintained.

In case of motor transport workers, the working hours include:

• The time spent in work done during the running time of the transport vehicle.
• The time spent in subsidiary work.
• Period of mere attendance at terminals of less than 15 minutes.

Weekly and compensatory holidays

No worker shall be allowed to work in an establishment for more than six days in any one week.

In any motor transport undertaking, an employer may, in order to prevent any dislocation of a motor transport service, require a worker to work on any day of the week, which is not a holiday, so arranged that the worker does not work for more than 10 days consecutively without a holiday for a whole day.

Extra wages for overtime

There shall be paid wages at the rate of twice the rate of wages in respect of overtime work, where a worker works in an establishment or class of establishment for more than such hours of work in any day or in any week as may be prescribed by the appropriate Government.

The period of overtime work shall be calculated on a daily basis or weekly basis, whichever is more favorable to such worker, provided that a worker shall be required to work overtime by the employer subject to the consent of such worker for such work.

Night shifts

Where a worker in an establishment works on a shift which extends beyond midnight:

• A weekly holiday for a whole day shall mean in this case a period of 24 consecutive hours beginning when the shift ends.
• The following day for the worker shall be deemed to be the period of 24 hours beginning when such shift ends, and the hours they have worked after midnight shall be counted in the previous day.

Maintenance of Registers, Records, and Returns

An employer of an establishment should:

• Maintain register in prescribed form, electronically or otherwise, containing such particulars of workers as may be prescribed by the appropriate Government including:
  » Work performed by them;
  » Number of hours of work constituting normal working hours in a day;
  » Day of rest allowed in every period of seven days;
  » Wage paid and receipts given therefor;
  » Leave, leave wages, overtime work, attendance, and dangerous occurrences; and
  » Employment of adolescent.
• Display notices at the workplace of the workers in such manner and form as may be prescribed by the appropriate Government.
• Issue wage slips to the workers, in electronic forms or otherwise.
• File such return electronically or otherwise to the Inspector-cum-Facilitator in such manner and during such periods as may be prescribed by the appropriate Government.

Provision relating to women employment

Women shall be entitled to be employed in all establishments for all types of work under this Code and they may also be employed, with their consent before 0600 hours (6 a.m.) and beyond 1900 hours (7 p.m.) subject to such conditions relating to safety, holidays and working hours or any other condition to be observed by the employer as may be prescribed by the appropriate Government.

Where the appropriate Government considers that the employment of women is dangerous for their health and safety, in an establishment or class of establishments, such Government may in the prescribed manner, require the employer to provide adequate safeguards prior to the employment of women for such operation.

Special provisions for contract labor and inter-state migrant workers

Prohibition of contract labor

This Code prohibits employment of contract labor in core activities of any establishment except where the principal employer may engage contract labor through a contractor to any core activity, if:

• The normal functioning of the establishment is such that the activity is ordinarily done through the contractor.
• The activities are such that they do not require full time workers for the major portion of the working hours in a day or for longer periods, as the case may be.
• Any sudden increase of volume of work in the core activity, which needs to be accomplished in a specified time.

Application

These provisions apply to:

• Every establishment in which 50 or more contract laborers are employed or were employed on any day of the preceding 12 months through contract.
• Every manpower supply contractor who has employed, on any day of the preceding 12 months, 50 or more contract laborers.

These provisions do not apply to the establishment in which work only of an intermittent or casual nature is performed.

Inter-state migrant workers

It shall be the duty of every contractor or the employer, of an establishment employing interstate migrant workers:

• To ensure suitable conditions of work to such worker having regard to the fact that they are required to work in a State different from their own State.
• In case of fatal accident or serious bodily injury to any such worker, to report to the specified authorities of both the States and also the next of kin of the worker.
• To extend all benefits to such worker, which are available to a worker of that establishment, including benefits under the Employees’ State Insurance Act, 1948 or the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 or any other law for the time being in force and the facility of medical check-up as available to a worker under this Code.
• To pay to every inter-state migrant worker employed in their establishment, in a year a lump sum amount of fare for to and fro journey to their native place from the place of their employment. This should be done in a manner that takes into account the minimum service for entitlement, periodicity, and class of travel and such other matters as may be prescribed by the appropriate Government.

Further, the appropriate Government shall make schemes to provide:

• Option to an inter-state migrant worker for availing benefits of public distribution system either in their native State or the destination State where they are employed.
• For portability of the benefits of the inter-state migrant worker working for building or other construction work out of the building and other construction cess fund in the destination State where such inter-State migrant worker is employed.

Application

These provisions apply to every establishment in which 10 or more inter-state migrant workers are employed or were employed on any day of the preceding 12 months.

Audio-visual workers

No person shall be employed as an audio-visual worker in or in connection with production of any audio-visual program unless:

• An agreement in writing is entered into:
  » With such person by the producer of such audio-visual program; or
  » With such person by the producer of such audio-visual program with the contractor, where such person is employed through such contractor; or
  » With such person by the contractor or other person through whom such person is employed.
• Such agreement is registered with the competent authority, to be notified by the appropriate Government, by the producer of such audio-visual program.

Mines

As per this Code, every mine shall be under a sole manager who shall have such qualifications as may be prescribed by the Central Government and the owner or agent of every mine shall appoint a person having such qualifications to be the manager. The owner or agent may appoint himself as manager if he possesses the prescribed qualifications.

No person below 18 years of age shall be allowed to work in any mine or part thereof. The apprentices and other trainees, not below 16 years of age, may be allowed to work, under proper supervision, in a mine or part thereof by the manager. In the case of trainees, other than apprentices, prior approval of the Chief Inspector-cum-Facilitator or an Inspector-cum-Facilitator shall be obtained before they are allowed to work.

The Central Government may prescribe the provisions for medical examination of apprentice, other trainee, and employee in the mine to ensure their fitness to work and to prevent the persons below 16 years of age to work as apprentice or trainee and those who are not adults to work as such employee.

Beedi and cigar workers

The Code specifies that no employer shall use or allow to use any place or premises as an industrial premises unless they hold a valid license issued under this Code for the purposes of these provisions, and no such premises shall be used except in accordance with the terms and conditions of such license. The authority, in deciding whether to grant or refuse to grant a license, have to consider:

• The suitability of the place or premises, which is proposed to be used for the manufacture of beedi or cigar or both.
• Previous experience of the applicant or their employee who is an experienced person or if the applicant has entered into agreement with the experienced person for employment for the period of license.
• The financial resources of the applicant, including their financial capacity to meet the demands arising out of the provisions of the laws for the time being in force relating to welfare of labor.
• Whether the application is made bona fide on behalf of the applicant themselves or in benami of any other person.
• Welfare of the labor in the locality, the interest of the public generally and such other matters as may be prescribed by the State Government.

A license granted shall be valid for five years and may be renewed thereafter. An application for the renewal of a license for the purposes of these provisions shall be made at least 30 days before the expiry of the period thereof, on payment of such fees as may be prescribed by the State Government.

Building or other constructions workers

The Code provides that no person, about whom the employer knows or has reasons to believe that they are deaf or have a defective vision, or they have a tendency to giddiness, shall be required or allowed to work in any such operation of building or other construction work that is likely to involve a risk of any accident either to the building worker themselves or to any other person.

Plantation

The State Government may prescribe requiring every employer to make provisions in their plantation for:

• Necessary housing accommodation, including drinking water, kitchen, and toilet to every worker employed in the plantation (including the workers’ family).
• Crèche facilities where in the plantation 50 or more workers (including workers employed by any contractor) are employed or were employed on any day of the preceding 12 months.

List of Industries Involving Hazardous Processes, as per the First Schedule of the Occupational Safety, Health and Working Conditions Code, 2020

List of Notifiable Disease, as per the Third Schedule of the Occupational Safety, Health and Working Conditions Code, 2020

Offenses and Penalties as Prescribed under the Occupational Safety, Health and Working Conditions Code, 2020

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