In the wake of the outbreak of COVID-19 across India and the world, the Indian Government imposed a nationwide lockdown requiring most establishments to remain closed, forcing businesses to quickly switch to a work-from-home (“WFH”) model. Despite lockdowns being relaxed across most of the country, several businesses have opted to continue with WFH. The expectation is that WFH will outlast the pandemic.

While there are currently no specific labour and employment legislations that regulate, prohibit or restrict WFH in India, the existing legal framework will have to be revisited to understand how it will apply in a WFH scenario now, and in a post-COVID era. 

While there may be numerous employment-related implications that may arise from a WFH scenario, and various related nuances, we have attempted to provide a flavour of some of the key matters and how the existing legal framework caters to them.

Recording Entry-Exit and Overtime Work 

Determining leave entitlements, pay deductions in case of unauthorised absence, overtime payments, performance assessment etc., often depend on proper tracking of daily attendance and working hours of employees, which employers usually achieve by monitoring their in-out times through biometrics, card-based swipe-in-swipe-out technology etc. It would likely be difficult to continue to monitor employees who WFH in the same manner and therefore, employers would have to invest in alternate technology and implement other creative practices so that leave, performance, overtime etc., can continue to be regulated in an efficient manner. Employers may also consider moving to performance metrics that do not necessarily depend on hours of work but would depend on the output of an employee. 

Women Working at Night

Certain state-specific local Shops and Establishments statutes (“LSE Acts”) prohibit employers from requiring women to work during certain prescribed times at night, or at least require employers to obtain some exemptions from the labour authorities before they do so. The intent of the law is to ensure the safety of women, but it can also have the unwanted effect of women losing out on job opportunities and being excluded from the workplace. However, since safety of women employees is not an issue in a WFH scenario, employers would not need to procure such exemptions prior to requiring women employees to work in the night shift. This would not only increase employment opportunities for women, but also allow employers access to a larger workforce pool while reducing their compliance burden at the same time.

New Forms of Misconduct

While most employers already have in place robust codes of conduct, the WFH scenario could throw up some unique forms of misconduct that may not have been envisaged, necessitating revisiting what would constitute misconduct under their existing disciplinary policies. Some new forms of misconduct that may occur in a WFH scenario are, employees being unreachable on the phone, pursuing other activities during working hours, demonstrating bad etiquette during video meetings, working under the influence of alcohol or drugs etc. Employers would be well advised to demonstrate foresight and update their disciplinary policies to address such issues.

Sexual Harassment where Home is the ‘Workplace’

The definition of “workplace” under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is wide enough to cover situations of sexual harassment that occur when an employee is on a formal WFH arrangement. However, employees are likely be less sensitized about what could constitute sexual harassment in this new work environment. In the absence of adequate sensitivity training from the employer, there is a reasonable chance of new types of sexual harassment emerging, such as, receiving unwelcome phone calls at odd hours, excessive calls/texts, insistence on video calls, uncomfortable conversations/comments/gestures being made during audio/video calls etc. In a WFH scenario, lines between the professional and personal are more likely to be blurred and employers should communicate to all employees that apart from continuing to demonstrate the expected levels of professionalism, they should also be sensitive to the new working environment and conduct themselves accordingly. 

Threat to Confidentiality

In the absence of robust security measures that would be available at a physical workplace, and the increased proximity with family members in a WFH situation, it can be reasonably expected that a WFH set-up would increase the risk of confidentiality breaches. Employers need to be conscious of this, and possibly invest in suitable software and technology apart from putting in place policies to ensure that there is no ambiguity about the expectations from employees in ensuring confidentiality and preventing data breaches in a WFH situation.

Revisiting Compensation Structures

Several businesses include ‘conveyance allowance’ or ‘food allowance’ as part of the employees’ compensation structure. These allowances are intended to cover the hardship associated with employees leaving their home and making themselves available at the physical workplace of the employer. Given the WFH situation, employers may consider replacing such allowances with alternate allowances, such as, allowances for the cost associated with maintaining a home office, infrastructure expenses, adequate IT infrastructure etc.

Registration and Compliances 

It is quite possible that, going forward, many employers will start moving away from physical workspaces and move towards predominantly WFH arrangements. The current employment-law regime is premised on physical workplaces, including in relation to obtaining registrations, maintaining registers to record entry-exit etc. In a predominantly WFH system, while there is no complete clarity at this point and the existing regulatory framework and potential changes will have to be analyzed further, it is quite possible that some registrations and compliances may no longer be required.

Conclusion

WFH is still an evolving model in India. With its increasing adoption, it is sure to bring to light its own unique set of legal challenges, and also softer challenges such as instilling organisation culture, ensuring quality training, development of team camaraderie etc. In addition to amending existing policies as suggested above, it would be useful for businesses to have well-defined WFH policies that consider questions such as whether an employee can WFH outside of the home location, whether they need to be available to work from their home office etc., to ensure that both employers and employees are able to function in a well-defined WFH set-up.