3 JUNE 2020

Legal Pointers For Educational Institutions Post Covid - 19

BY NIVEDITA KRISHNA

With the education department being permitted to issue directives, on school re-opening, a educational institutions in Karnataka are preparing to re-open with the following timeline:


Pre-primary - 20/7/2020

1st – 3rd grade - 15/7/2020

4th – 7th grade 1/7/2020

8th – 10th grade 15/7/2020


Schools will have the onus to ensure that child safety measures are implemented. Social distancing and hygiene norms should be implemented and be driven from a top-down perspective – this includes allied processes like transportation, catering, sports activities and after school activities. The Early Childhood Association and Association for Primary Education and Research has provided a comprehensive guidelines for children, teachers and parents to be followed upon re-opening. Please click here to access the guidelines.


This means fostering a robust Child Safety Committee and School Management Committee in schools as mandated by the Karnataka Education Act and Right to Education Act.


Similarly, universities and colleges are to follow the guidance of the UGC in completing the examinations for the past academic year and commencing the classes. Please click here to access the UGC circular.


School Fees


Most states in India had deferred payment of school fees and schools were not allowed to increase the fees for the next academic year. In Karnataka for example, the schools were directed not to insist on fee payment and to permit fee payment in instalments.


Working Hours & Labour Laws


In the wake of COVID – 19 pandemic, several states in India have exempted employers and businesses from complying with certain labour laws, including payment of wages and working hours. Thus some respite may be available for educational institutions in respect of the man-power services such facilities and security contracts. However, CBSE has advised states and union territories to issue suitable instructions of payment of salaries to the teaching and non-teaching staff during the period of pandemic.

Do reach out to legal counsel to ascertain specific relaxations that may have become available in your state, since some of these circulars are under active litigations.


Relaxation in contractual obligations


The Ministry of Finance issued an Official Memorandum dated February 19, 2020 clarifying that COVID _19 is a "Fore Majeure". Another circular dated May 13, 2020 (applicable to Public-Private Partnership (PPP) contracts) provides for an extension of 3 – 6 months for those contracts that had to be completed on or after February 20, 2020. These time-lines can be applied to other contracts as well.


Extension in Validity of NOCs


The Ministry of Housing and Urban Affairs has in its circular dated 28th May, 2020 directed all departments to consider an extension of validity of NOCs by atleast 9 months and a further 3 months on discretionary basis. These include NOCs issued by RERA, Pollution Control Board, Forest Dept, Municipal/Development Authority, Inspectors of Factory etc.

Hence any NOCs for commencing educational institutions may also be eligible for extensions.


Financial Obligations


While loan moratoriums have been granted, if you have issued a bank guarantee you may not be in the green. Courts have held that Bank Guarantees can be enforced by a holder even in the Force Majeure situation. Consult legal counsel so that you can take an informed stand.


Payment of Rent on Leased Premises


No exemption to payment of rental has been made available in view of force majeure. You can however negotiate with your land-lord to provide phased rental payments. The Delhi High Court on May 21, 2020 in the case of Ramanand & Ors v. Dr. Girish Soni & Another, rejected the tenant’s application for suspension of rent during COVID-19 lockdown and stated that some postponement or relaxation in the schedule of payment can be granted owing to the lockdown.


Employer Obligations


As an employer, you are obligated to follow the National Directive as stated in Annexure II of the MHA Order dated May 17, 2020 such as WFH, sanitisation & hygiene, thermal scanning, social distancing etc. Negligence of the employer followed with your employees testing positive for COVID will attract legal action. Please click here to access the MHA Order .

Change is the only constant. Courts are functioning and interpreting clauses in a new light. So ensure to stay updated, else you might be out-dated!

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