ABSTRACT

Every economic shock leaves behind a legacy, and the Corona outbreak is not an exception to it. The Corona outbreak has provided with an opportunity to experiment globally with the concept of remote working. The work environment is suddenly exposed to a new experiment at the global level. Many companies have asked their workers to work from home until the situation becomes normal again. Even various companies have come forward to look work from home on a long term basis and have decided to move to work from home on a permanent basis. Work from home is becoming the new norm of the employment sector and is all set to be introduced as a normal course of work.

Many of the companies are introducing work from home arrangements for the first time, as a result, some are thriving while others are struggling to adapt to the changes. At the same time, such changes in the working structure are posing unparalleled legal and economic challenges to both the employer and employee. At the same time, India’s Labour laws and Labour Codes are mostly silent on this subject and even if there are some provisions they are not certain enough to provide a perfect image of legal provisions related to work from home. So it is necessary that the mental and emotional space of an employee is not compromised under the facade of liberal work policies introduced by the employer. The biggest challenge is that most organizations do not have well-documented policies and guidelines to support work from home culture.

At the beginning of the article, the author aims at introducing the major shift in the work structure. The Author further continues to identify the major challenges and concerns in introducing work from home culture and suggests possible ways of addressing and managing such challenges. The author further identifies the various responsibilities of employer and employee in such kind of work structure. The author also makes reference to international Labour standards laid down in various relevant conventions and recommendations, which are recognized internationally and forms part of various national Labour laws. The author concludes the article by stating his views as to whether work from home should be continued once the situation becomes normal and suggests some changes in the Labour laws and policies in India.

INTRODUCTION

Within a short span of time Coronavirus has changed how we meet and greet each other, how we work and how we are educated. The online medium has replaced offline mode in every aspect of our day to day activity. Colleges and offices are empty, but thankfully owing to the help of technology we are able to keep sailing through these tough times. Our work environment has suddenly reinvented and a wide experiment of remote working is being carried out, all across the globe.[1] Once this crisis is over, a number of companies will go back to their old habits. However, for many, the new reality of working from home is considered a viable alternative and is here to stay.[2] But, as the new reality dawns and evolves into more mature telecommuting models, India’s legacy Labour laws and proposed Labour Codes stay silent on the subject. These legal regimes do not recognize work from home as a viable work arrangement. Although this transition seems a viable arrangement for the short run, it may cause serious troubles for both the employer and the employee in the longer run.[3]

ACCEPTED FORMS OF WFH AT INTERNATIONAL LEVEL

Work from Home is not totally an alien concept for the developed countries.[4] Understanding the WFH practices at the international level can help in understanding the regulatory frameworks at the national level and thereafter identifying the gaps in the Indian regime of labour laws.

Teleworking

Teleworking is referred to as the using of ICTs such as smartphones, laptops, mobile handsets, electronic gadgets, etc. in carrying out the work without being present at the premises of the employer.[5] The word was coined first time by the Californian law in 1955 aimed at promoting and developing ‘teleworking’.[6] Later on various countries developed their own laws in regards to teleworking. It was in the year 2002 when even EU adopted the guidelines on teleworking named as ‘Framework Agreement on Teleworking’.[7] Teleworking is even recognized by International Labour Organization under ILO Convention 177, ensuring equal treatment between WFH workers and other workers.[8]

Flexible Working Arrangements

Flexible Working Arrangements is aimed at promoting the work-life balance of employees.[9] They afford flexibility in the conduct of work, including flexibility in work-hour schedules, the number of hours worked, and, place of work.[10]

DOES INDIAN LAW SUPPORTS WORK FROM HOME?

The idea of working from home is not alien to many of the developing countries as they have specific laws dealing with the rights and duties of employer and employees while working remotely. But as far as Indian labour laws are concerned they do not specifically recognize this ‘new normal’ as a legal setup to work.[11] Work from home is going to become a significant part of the labour sector once the pandemic is over. Provided that this non-traditional form of work is going to be the ‘future of work’ in the coming days, it is necessary that regulatory compliances are made addressing all the issues under this heading. Any difference between the WFH and other workers at this stage can even lead to income inequalities.[12] While not all parts of distant, non-conventional working are addressable by enactment, building up a cognizant administrative structure on work from home is essential, particularly for India, where 96% of organizations carried out WFH since the public lockdown a year ago.[13] It was also the same year when the long-awaited four Labour law codes were enacted, but none of them contained the provision which endorsed the regulatory framework for ‘work from home’ which is becoming the matter of prime significance in this time of uncertainty, as the sword of lockdown is hanging upon us every second.

Position under Labour Codes

There have been some recent developments under Labour codes under which an attempt has been made to endorse Work from Home and its definitions. Some of those codes are:

Draft Model Standing Orders for Service Sector, 2020: This Code is applicable to the employer having more than 300 workers.[14] This Draft model permits an employer to allow employees to work from home on the basis of condition discussed between both of them. However, even this order cannot be termed as having some enforcement capabilities as this does not define the WFH and the underlying regulations for it. Further, this Order may cause a lot of problems in terms of implementations when it would interact with the different state laws having different labour codes.

Code on Social Security 2020: This Act defines home-based work as the work which is carried out at the home of employees.[15] However, this Code does not encompass the definition of Work from home. But through the internationally set out legal principles and the definition of home-based work, certain facets of WFH can be attempted to address through this Code.

WORK FROM HOME: A CHALLENGE?

Introducing work from home brings a lot of benefits to the employer as well as to the employee. It helps in balancing the work-life balances of the employee and limits the liabilities of the employer. With all the flexibilities which WFH brings, it poses some implementation as well as legal challenges for both the stakeholders.

Maintenance of Statutory Records: The various labour laws in India require numerous amount of compliances and records which need to be maintained by the employer. But the problem with these laws is that these laws assume that work can be carried out only from the ‘establishment’ or from the ‘workplace’, and does not account for the WFH culture. Therefore, the labour laws need to be designed in a way that it simplifies the maintenance of employees records for statutory purposes.

Working hours and Overtime: When an employee is working from home it is very difficult to ascertain the working hours. Further, it is even a tedious job to calculate the overtime, as it’s very difficult to ascertain as to when the employee finished his working hours and engaged himself in overtime since the employee is at home all the time.

Implementation of Wage Codes and other labour laws: Owing to WFH an employee may work even from a different state although the company is situated in a different state. However, the minimum wages and working hours differ from state to state. This is the crux of the problem, that in the absence of any central or state law which recognizes WFH, it would be very problematic to identify as to the laws of which state would govern the employee: The state of the company or the state laws of employee? The answer to this question cannot be answered through some uncertain laws.

Health and Safety of workers at Home: The employer is liable to ensure the safety of its employees within the premises of the workplace. But what about the liability of the employer when an employee is working remotely from his/her home and is out of control of the employer? Whether the employer would be liable under POSH Act and Vishaka guidelines[16], if a sexual offence is committed, even though the employee is at his/her home? The logical answer would be that the liabilities cannot be stretched too far as the employee is not in the space managed by the employer, but such an interpretation would give a pathway of escaping other liabilities by the employer on the same grounds.

Facilities provided to the employee: Work from home brings a lot of financial burdens along with it. The cost includes buying equipment, internet connectivity, safety equipment, maintaining screen timing, etc.  Most of the Companies are incurring the cost of all such equipment, but imposing such responsibility on companies would add huge financial losses to the overburdened financial status of the company due to the pandemic. The other possible approach could be cutting the transportation cost and other facilities cost and converting it to furnish the equipment to the employees.

While many more such possible challenges would arise with the advent of time, the lawmakers should ensure that such disputes are resolved and a quick solution is arrived at by enacting a law that encompasses WFH and its regulatory frameworks.

ILO GUIDELINES ON WFH

The Coronavirus has led to change in the work structure of the employment sector, consequently, virtual workplaces are being embraced. ILO on January 2021, released a report titled Working from home: From invisibility to decent work, addressing the concerns related to working from home. [17]

This report emphasized the role of the Government in playing a major role in protecting the WFH workers. This report made strong recommendations of adopting policies into the national legislation as early as possible. The important feature of this report is that it recommends a gender-responsive legal framework that aims at providing equal treatment to all categories of WFH workers. The report called for better compliance, legal protection, occupational safety and social security for industrial home-based workers. Most importantly it recommends the ‘right to disconnect’ to a teleworker to ensure that he/she is not over-utilized without paying and it also ensures that a boundary is maintained between work life and personal life.[18]

CONCLUSION

The Coronavirus and the national shutdown has hugely affected us and how we work. The physical workplaces and offices have been replaced with virtual workplaces. Work from home is becoming the new normal of this era. There is even a possibility that this form of work would find a permanent space in the employment sector. But the major concern during these testing times is the lack of any proper legal framework governing the work from home culture in India. Although there has been the introduction of three labour codes after the lockdown, there seems no effort from the legislators in enacting laws concerning WFH as none of these codes specifically contains provisions relating to WFH.

The government should start thinking of ways to introduce WFH as a legal option. The new labour law codes just seem a beginning and there is still a long way to go.

[1] Adams-Prassl A., Boneva T. ,Rauh C.,Golin. M. 2020b.“Work Tasks That Can Be Done from Home: Evidence of the Variation Within and Across Occupations and Industries.

[2] BarreoJ., Bloom N., Davis S.. 2020. “Why Working From Home Will Stick.” Stanford University

[3] Bick A., Blandin A., Mertens. K. 2020. “Work from Home after the COVID-19 Outbreak.” CEPR Discussion Papers 15000.

[4] AlipourJ. V., Falck O., Schüller.S.2020. “Germany’s Capacities to Work from Home”. IZA Discussion Papers.

[5] N. Ben Fairweather, “Surveillance in Employment: The Case of Teleworking”. Journal of Business Ethics, Vol. 22, No. 1,

[6] California Labour Code.

[7] 2002, EU Framework Agreement on Telework

[8] ILO Convetion 177, Home Work Convention 1996

[9] Julie Prowse, Peter Prowse, “Flexible working and work–life balance: midwives’ experiences and views”. Work, Employment & Society, Vol. 29, No. 5 (OCTOBER 2015)

[10] ibid

[11] Soumya Jha and Ulka Bhattacharyya in Voices, India, World, TOI, “Work from home: Understanding the gaps in India’s regulatory framework”.

[12] Bonacini L., Gallo G. , Scicchitano. S. 2021. “Working from Home and Income Inequality: Risks of a ‘New Normal’ with COVID-19.” Journal of Population Economics 34: 303–60.

[13] Blog: Pooja Pandey, “Do Indian law Support Work from Home” at Simpliance.

[14] Ministry of Labour and Employment, Draft Model Standing Orders for Service Sector, 2020.

[15] Section 2(36), Code on Social Security 2020

[16] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

[17] ILO report on- “Working from home: From invisibility to decent work”, 13th January 2021

[18] Ibid.

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