By Sonakshi Das, Senior Associate, J. Sagar Associates
In the wake of the COVID-19 outbreak, corporates were pushed to quickly switch to a work-from-home (WFH) model. As the gate towards normalcy attempts to open, businesses are now faced with testing times to find the right balance between an online and offline work setup. In a pre-COVID era, what was otherwise considered an exception, now seems to be an accepted ‘new normal’.
To that end, businesses worldwide are starting to peel off their birds-eye reservations around a WFH setup, and are revamping their former conventional ideologies and practices to accommodate a paradigm shift in work culture, with an increasing acceptance towards a WHF or a hybrid working model – and in some cases, even on a permanent basis.
While reports suggest that in the past one year, employee wellbeing and productivity have significantly improved within their organizations – leading to a positive overall impact on revenue growth, undoubtedly from a legal perspective, a hybrid working model may potentially result in several employment-related implications and nuances. But what comes next as the foreseeable pre-dominant question, is the sustainability of such a working model on a long-term basis in India, especially considering the position of law as it stands on date.
At the outset, it is important to note that currently, there are no specific Indian labour and employment legislations that regulate, prohibit or restrict a WFH working model in India. The Ministry of Labour and Employment through the Model Standing Orders for Service Sector, 2020 (MSO) released via notification dated 31 December 2020, recognised the concept of ‘work from home’. The MSO provided that “Subject to conditions of appointment or agreement between employer and workers, employer may allow a worker to work from home for such period or periods as may be determined by employer”.
The MSO, however, did not provide any other specifications or guidelines in this regard. The existing Indian legal framework has been consistently re-examined, and particularly, on a case-to-case basis, to understand the manner in which the extant laws will apply in a WFH scenario. Despite the lack of a definite legal framework surrounding the viability or the express permissibility of a WFH working model system in India, there seems to be an industry-wide acceptance in adopting this structure within its workplace.
In a typical organisational set-up, compliance in terms of applicable laws is determined based on the location where such organisation is situated, and where an employee is required to work out of or render services from. In case of a WFH working model, businesses would need to carefully structure employment contracts to avoid potential impasses in terms of employee disputes including challenges relating to work hours, location and overtime, amongst others.
State specific legislations including, inter alia, compliances with local shops and commercial establishments laws along-with compliances specific to special economic zones, software technology parks and ‘Other Service Providers’ (OSPs) may need to be evaluated to conclusively determine applicability of laws in case of a WFH set-up. As a welcoming change, in light of the COVID-19 outbreak, the Government of India has granted several exemptions (for eg., in case of OSPs) in terms of compliances where employees are required to work remotely. It is expected that some of these exemptions are likely to continue through the next year as well.
Having said the above, as way forward, it is crucial for employers adopting a WFH (or, hybrid) model to implement a comprehensive WFH policy in anticipation of the changes in workplace dynamics on account of the potential WFH set-up.
To begin with, a WFH policy should, inter alia, address questions such as whether an employee can work from home outside of the home location, whether they need to be available to work from their home at all times, etc., to ensure that both employers and employees are able to function in a well-defined WFH (or, hybrid) set-up. While of course such WFH policy would be more management-centric, some of the key aspects which may be considered as part of a WFH policy include:
- Work-hours: Computation of leave entitlements, overtime, deductions on unauthorised absence, etc., are largely based on proper tracking of daily attendance and working hours of employees. This is typically achieved by monitoring employees’ actual work hours (in-out times through biometrics or other means, card-based swipe in/ out technology, etc.). In a WFH set-up, considering the practical difficulties in monitoring employees in similar manner, employers may consider aligning existing practices with newer processes to ensure productive tracking of actual work-hours, such as monitoring actual system/ server log-in versus actual work output, etc.
- Productivity monitoring and management: Unlike a typical (physical) workplace setup, employees working from home may opt for a ‘spread-out’ schedule through the day, in place of the standard/ prescribed work hours or schedule. It is incumbent to indicate an employee’s functionality in a structured manner to prevent employees working extended hours to potentially expose employers to claims for overtime. Employers should provide clear instructions to managers and supervisors to ensure efficient communication for timely deliverables.
- Office assets and property: If employees working remotely are provided with office assets or properties, and are required to render services using only such assets, the permissibility and/ or restrictions, as the case may be, can be considered in the WFH policy. Subject to applicable restrictions, if any, employers may consider including location tracking software in office assets to note the actual location of service performance. Appropriate insurance for such assets may also be considered.
- Reporting requirements: WFH policy should allow flexibility in terms of an employer’s right to require the employees working remotely to report to any of the office premises, depending on business needs. Management may examine aspects such as costs (including relocation and transportation costs), allowances, reimbursements, etc., which may arise in such situations.
- New forms of misconduct: A WFH scenario may likely introduce distinct/ additional forms of misconduct which may not have been envisaged, thereby necessitating revisiting what would constitute misconduct under existing disciplinary policies. By way of example, some new forms of misconduct that may occur in a WFH scenario are, exhibiting unprofessional/ bad etiquette during audio/ visual meetings, being unreachable for repeated instances during work hours, pursuing other activities during work hours, working under the influence of alcohol or drugs etc.
- Confidentiality and information security: In the absence of stringent security measures that would otherwise be present at a physical workplace, and the increased proximity with outsiders in a WFH situation, it can be reasonably expected that a WFH set-up may increase the risk of confidentiality breaches. Stringent protocols on maintaining confidentiality while working from home and adopting suitable software to ensure that information confidentiality remains secure, can be considered.
- Revisiting compensation structures: Miscellaneous allowances and reimbursements (such as conveyance allowances, food allowances, if any) available to employees working from physical premises may need to be re-visited, as the same need not necessarily extend to employees in a WFH set-up. Provision for alternate allowances such as, allowances for costs to set-up or maintain a home office, infrastructure/ internet expenses, etc., if considered, may be provided for in the WFH policy.
