In the wake of lockdowns imposed as a result of the COVID-19 pandemic, companies around the world were forced to implement flexible working models. What once seemed a far reality, has now become the most adopted mode of working by organizations globally. Flexible working arrangements are developing swiftly, its variations are proliferating, and have gained popularity.
Various reports and surveys suggest that employees have overwhelmingly responded to flexi-working arrangements. Many analyses have shown that there has been considerable improvement in employee productivity and morale. As part of the 2022 State of Remote Work report, ‘86% of employees either wanted fully-remote or remote-first work environments going forward’. Further, a survey by Gartner reveals that ‘50% of Indian Hybrid Workers Consider Themselves More Productive When Working Remotely’. Some companies, like Twitter, Reddit, SAP etc., have shifted to a permanent flexible work model.
While many organizations have shown their openness towards adopting flexible/hybrid working models, some of them are reluctant to make the switch. A key challenge lies in exercising control and supervision over employees who are working remotely. Also, inadequate on-job training and exposure to the employer’s work culture, sub-optimal work infrastructure at home, risk of confidentiality breaches, possibility of employees moonlighting, etc. are among the concerns that employers have with the remote working model.
While organizations are preparing themselves for a return to ‘work from office’, many employees are unwilling to give up the benefits of working remotely. In some markets it has been seen that employees would rather switch jobs, than return to office permanently. Therefore, companies unwilling to adopt remote working or offer a hybrid model giving flexibility to their employees bear the risk of losing talented staff who prefer remote working. It is also possible that some employees may ask for additional remuneration when asked to return to office, as they would no longer be able to save on commuting, relocation, child-care, elder-care, etc. costs.
With this background, it is germane to understand the Indian government’s initiatives to regulate and support remote working, some of which are as follows:
- The draft model Standing Orders proposed by the central government provides 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 Maternity Benefit (Amendment) Act, 2017 permits a woman who has returned from maternity, and whose nature of work is such that it may be performed remotely, to work remotely on mutually accepted terms and conditions.
- The Ministry of Labour and Employment has issued an advisory on June 1, 2021 asking state governments and union territories to encourage employers to allow nursing mothers to work from home wherever the nature of work so permits.
- For companies registered as Other Service Providers or information technology (‘IT’) and consulting companies, various guidelines/protocols have been issued on work from home /remote working model.
- The scope and ambit of ‘workplace’ defined under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, has been interpreted liberally by the Indian courts to include under its scope any place where the employee is working, either at home or remotely.
The above initiatives of the government are commendable. However, given the fact that many employers adopted remote working during the pandemic and will introduce flexible/hybrid working arrangements going forward, several legal aspects need to be considered so that the rights and duties of employers and employees are clearly defined. Such aspects include cross-border remote-working arrangements, applicability of health and safety laws to flexi-working arrangements, remote working infrastructure costs and expense reimbursement, right to disconnect, security of confidential data and trade secrets, etc.
Given the above-mentioned issues, having a comprehensive legal framework on remote working is the need of the hour. Since the beginning of the COVID-19 pandemic, several countries, such as Angola, Argentina, Belgium, Brazil, Chile, Colombia, Germany, Greece, Luxembourg, Mexico, Norway, Portugal, Russia, Slovakia, Spain, Taiwan, Turkey and Ukraine, have introduced legal frameworks for remote work. Some countries, including Ireland, UK and France, are working on amending their laws to protect remote workers as well.
In the absence of a dedicated legal framework on remote working in India at present, it is advisable for companies to prepare comprehensive remote working policies to address the legal challenges that have arisen due to the abrupt shift to remote and flexible working.