The evolving concept of WFH in India amid pandemic
The COVID-19 pandemic has presented unprecedented challenges in the context of employer-employee relationship. Since March 2020, most establishments across the world have seen a transition in what was traditionally considered a ‘workplace’ to a ‘virtual workspace’ as employees were now required to work from their home. Apart from the reduction of operational costs, there is a growing realization that productivity of employees has not been compromised while working from home. Therefore, work from home is not only a continuing phenomenon at present but is deemed as the ‘new normal’ and is likely to stay even after pandemic discontinues holding the sway.
However, Indian labor and employment legislations are presently not equipped to regulate and resolve issues that may arise out of the work from home scenario, and do not provide for any specific guidelines that may regulate the employer-employee relationship in the wake of this new normal. Accordingly, we set out below a few issues that may arise in a remote working environment vis-à-vis the employer-employee relationship, and the way such issues may be addressed / mitigated.
Health and safety concerns of employees working from home
Liability of employers to pay compensation to employees / their nominees for injuries sustained / death due to accidents arising out of or in the course of employment have traditionally been interpreted in the context of injuries sustained in a physical workspace. However, employers will now have to adapt to the changing circumstances of a virtual workspace.
Employers have a duty to ensure that the employees’ workplace (i.e. their home) is ergonomically sound, clean, safe, free of obstructions and hazardous materials, and does not pose a risk to their health and safety. To this end and with a view to ensure that the health of employees is not compromised, certain organizations have devised reimbursement policies towards costs related to ergonomic chairs, monitors, and other office furniture.
Additionally, most employers in India have also obtained a group medical insurance policy for their employees (which covers medical expenses for treatment of COVID-19) to mitigate their risks in such eventualities. Certain employers have also rolled out employee assistance programmes to help employees cope with mental health issues such as stress, anxiety and problems which may arise in course of working from home.
Working hours, leave entitlements and overtime payments
Work from home has unfortunately blurred the differentiation between working hours / days and non-working hours/days. However, the statutory provisions relating to working hours, leave entitlements and overtime wages, etc. shall continue to apply as if the employees have been working from the office premises. In establishments that do not have the digital means to track the employees’ working hours and leaves, tracking the exact / actual number of hours of work rendered by the employees would pose a challenge. This would create an ambiguity in the entitlement and computation of overtime payments for relevant employees under the applicable law.
To deal with such issues, employers may consider changing to a weekly working hours limit as opposed to a daily working hours limit, and devise adequate mechanisms to track the time expended by an employee (such as requiring the employees to log in and log off the work portal at the beginning and end of the day, installing software / applications to track productivity, etc.). Employers would also be required to be mindful of and be prepared for scenarios wherein an employee has tested positive for COVID-19 and may be required to self-quarantine as a consequence of discharging his / her official functions (such as occasionally attending office / visiting customer site, etc.). In such circumstances, the employee should be granted with additional paid leaves, and such additional leaves should not be adjusted against his/ her existing earned, casual or sick leaves, subject to applicable local laws in this regard.
Regulating workplace conduct
Regulating employees’ conduct in a remote / virtual workplace is another challenge for employers. For instance, women may face sexual harassment at work through online mediums while working from their residential premises (which is a notional extension of ‘workplace’). However, the anti-sexual harassment policies framed by employers, in several cases, do not address such circumstances.
Therefore, in addition to revising the anti-sexual harassment policies to accommodate such change in circumstances, it may be necessary for employers to apprise the employees of their rights, duties and responsibilities towards prevention of any kind of harassment, sexual or otherwise, particularly in the virtual workspace scenario.
Data security is another challenge that employers may have to tackle with. Home networks are often not secure, and employees dealing with sensitive data using such networks may expose employers to a risk of cybersecurity breach. To comply with their data protection obligations and avoid / mitigate any inadvertent security breaches, employers should apprise and train its employees for maintaining proper password protection on any home-based devices, ensuring secure access to the internet from home, installation of security software and firewall updates, not opening suspicious / phishing emails, ensuring documents are stored and disposed of safely, etc.
In these unprecedented times, employers are likely to face challenges in reconciling their statutory obligations and business requirements, while also providing their employees the flexibility to manage their personal and professional lives whilst working from home. While India is currently in the ‘unlock’ stage and the workplaces have become accessible again, most employers in India, specifically in the services sector, are treading cautiously and to the extent possible, encouraging their employees to continue working from home. To adapt to the ‘new normal’ and be equipped to deal with the indicative issues listed above, employers may develop a work from home policy or set of appropriate policies that may set out the particulars in relation to work hours, alternative workplaces, occupational safety and health, applicable benefits, prevention of workplace harassment and confidentiality as well as data protection.
The views of the author(s) in this article are personal and do not constitute legal/professional advice of Khaitan & Co.