AUTHOR’S NAME – Nidhi Mishra, LL.B, Second Year.
INSTITUTION NAME – Gopaldas Jhamatmal Advani Law College, Mumbai, Maharashtra.
After the outbreak of the COVID-19 pandemic in 2020, a lot of changes were seen in the service sectors related to the shift of “work from office” to “work from home” and to avoid the physical get-together of employees for their working purposes in the office leads to the lives of employees in danger. So, as per the new norm set by the world after the pandemic outbreak, a worldwide economic downturn, transformed the traditional workspace into a digital workspace. The traditional working system is being replaced with the development of new technologies daily. According to the International Labor Organization, the pandemic is an unusual test of working from home and predicting the best results of working from home in the coming years. And for the time being, this shift in the workspace requires some legislation to support at the time, when conflict arises between the employer and employees. Especially in India, after the outbreak, it’s time to develop a coherent regulatory framework for remote working culture. In India, 96% of organizations rolled out Work from home since the national lockdown last year, to streamline work from home for certain lines of work most affected.[i] After the universal acceptance of work-from-home culture, there were changes in the labor codes in the year 2020. However, the framework lacks the regulatory infrastructure to be provided in work from home to the employees for smooth functioning of the working process. According to the views of Experts, “Virus has changed the traditional working structure and had broken the cultural and technological barriers which had made a drastic shift from office to laptop or desktop screens and have made it an important part of working life in the post-pandemic.[ii] These current laws, in India, which have been proposed under the Industrial labor codes, deal only with Special economic zones (SEZ) in the IT sector and for women who have restarted their careers after maternity leave at the discretion of the employers.
Model Standing Orders 2020:
In India, we do not have any updated laws or guidelines about remote working or working from home. After the pandemic outbreak in 2020, the Central Government codified, several of its Labor laws into four codes, and one of those is Industrial Labor Codes 2020 which contains provisions regarding the work-from-home arrangement in the service sectors, it was published by the Ministry of Labor and Employment and it is still in the pipeline and yet to be notified. And the first drawback of this Model Standing Orders 2020 is there is a criterion set by the government that has enabled employers to allow their workers, to work from home only if they meet the criteria for further appointment and agreement between both parties, however, this work-from-home criteria is only applicable to the business has 300 or more than 300 employees working. And secondly, it applies to females who were on maternity leave and want to restart their careers. And after abiding by the requirements the employers may allow work from home by appointing and agreeing for a predetermined period.
The Maternity Benefit (Amendment) Act 2017:
The Maternity Benefit (Amendment) Act 2017 has allowed women after rejoining the company from maternity leave to work remotely or work from home if her part of working does not affect the system of the company and is also mutually agreed upon by the employer and employee as per the terms and conditions of the working.[iii]
The Ministry of Labor and Employment has also issued guidelines on June 01 2021 that all the State governments and Union Territories are highly encouraged to allow the mother nurses to work remotely wherever it’s a necessity to work.[iv]
Occupational Safety and Health Working Condition Codes 2020 (OSH Code):
Under this Code, the word “Establishment” is mentioned for the workplaces of the employees working in but there is an ambiguity in the same as it does not cover the safety and health issues outside the Establishment. Hence the point of concern is the safety and health issues of the employees working remotely outside the physical Establishment.
The Sexual Harassment at Workplace (Prevention, Prohibition, and Redressal) Act 2013:
Under this Act, the word “Workplace” has been interpreted very well by the courts in India. It has deeply analyzed the term employee’s workplace of being in the office or the transportation work that is done outside the workplace.[v] Though the word “Workplace” has been interpreted widely it should now be more widely interpreted in terms of the newly developed culture of working from home with broadening the concept of Establishment for the protection of the employees in terms of their health and occupational safety when they are working from home.[vi]
Code of Social Security 2020 (CSS Code 2020):
The Code of Social Security 2020 came into the scenario when the Ministry of Labor and Employment added the definition of Gig and Platform workers under the code. This code aims to protect and provide social security benefits in terms of maternity, disability, and sickness to all organized or unorganized workers working across different organizations and platforms. The words added under the code after the awakening of a pandemic the CSS defined “home-based work” concepts like remote work, telework, Information and communication technology work, etc. are absent and there are no clear definitions of remote work or telework as per the international standards.[vii] The International Labor Organization has defined the term telework under the Umbrella term remote work and both are supposed to be done outside the Establishment. i.e. at the worker’s place which is considered to be work at home and the wages of the workers working work at home are different under CSS as unorganized workers and this lead to minimizing the social security to be provided under CSS depending upon the category of workers.
The Pandemic has already changed the working scenario from traditional working in the office to the newly introduced work culture which is more to be seen as a future of work. i.e. Gig, hybrid, and Remote work. Also, the points of concern are to be noted from the Employer’s side and these include productivity, accessibility, data breach, failure to surrender company assets, job abandonment, unauthorized absence from work, and moonlighting. From an employer’s perspective, the industry is divided on the issue of moonlighting.[viii] People who prefer freelancing jobs or projects are finding a better option as a second job or to earn part-time work whereas according to employers it leads to a breach of confidential data.[ix]
These are lacunae that are present in some of the labor codes being drafted after the hit of the Pandemic. Now it is high- time for the policymakers in India to prepare a proper framework to deal with all these problems related to our new work culture and have a smooth working environment for the employers and employees in the long run.
Remote working laws of different countries:
Some of the countries have already introduced their legal framework for remote workers and some are in the process of amending laws as per the situation concerned. The countries which have legal frameworks prepared Angola, Argentina, Belgium, Brazil, Chile, Colombia, Denmark, 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.[x] Specifically dealing with Spain and Denmark.
Spain drafted their legislation related to remote work in September 2020 and they ensured that remote work should be voluntary and should be formalized and written on the agreement without the preconception of general agreements etc. Companies are bound to provide the equipment and resources needed to perform the work remotely. The employees under this employment contract must work for at least 3 months or 30% of an employee’s day is eligible to work as a remote worker. Also, the benefits related to remote work are the Right to be paid for the work done and also for the additional expenses incurred on the resources, the right to privacy, the right to disconnect after the allotted work hours, and Data privacy. Also, the framework has empowered the Employers so the employee also fulfills their required duties.
Denmark also issued fresh guidelines on 30th April 2022, as the Danish Working Environment Authority on the occupation health and safety requirements. These guidelines apply to people working at their place. Firstly the employees performing the work on the screen for more than 2 days per based on an average over a month (previously at least one day per week or more than two hours per day).[xi]Employers must ensure to supply the required stuff to perform the work. And if there is any injury then the injured party has to show the causal connection and their work to get the compensation.
After analyzing our frameworks and other countries’ frameworks it is clear that we need a proper framework that deals with work-from-home laws in a focused manner. And provide a detailed framework so that we can easily navigate through challenges posed by remote works, and business models. India should take a cue from such legislations and also incorporate employee welfare measures such as provision for periodic physical meetings at regular intervals for team building, education, and training of remote employees for skill-enhancement, protection of privacy, and mental and physical well-being.
[i] Soumya Jha and Ulka Bhattacharyya, Work from home: Understanding the gaps in India’s regulatory framework, THE TIMES OF INDIA, (Sep. 7, 2023, 9:29 PM) Work from home: Understanding the gaps in India’s regulatory framework (indiatimes.com).
[iii] Namita Chadha & Savita Sama ,Changing landscape of Indian laws concerning remote working, (Sep. 7, 2023, 9:29 PM) people matters, https://www.peoplematters.in/article/strategic-hr/changing-landscape-of-indian-laws-concerning-remote-working-34238
[vi] Soumya Jha and Ulka Bhattacharyya, Work from home: Understanding the gaps in India’s regulatory framework, (Sep. 7, 2023, 9:29 PM), THE TIMES OF INDIA, Work from home: Understanding the gaps in India’s regulatory framework (indiatimes.com)
[vii] Soumya Jha and Ulka Bhattacharyya, Work from home: Understanding the gaps in India’s regulatory framework, (Sep. 7, 2023, 9:29 PM) THE TIMES OF INDIA, Work from home: Understanding the gaps in India’s regulatory framework (indiatimes.com)
[viii] Minu Dwivedi , Regulating remote working: Need of the hour, (Sep. 7, 2023, 9:29 PM), LEXOLOGY, Regulating remote working: Need of the hour – Lexology
[x] Soumya Jha and Ulka Bhattacharyya, Work from home: Understanding the gaps in India’s regulatory framework, (Sep. 7, 2023, 9:29 PM) ,THE TIMES OF INDIA, Work from home: Understanding the gaps in India’s regulatory framework (indiatimes.com)
[xi] New remote working legislation around the world, (Sep. 7, 2023, 9:29 PM), LOCKTON GLOBAL COMPLIANCE, New remote working legislation around the world [Updated] – Lockton Global Benefits