Animay Singh
Biography
The COVID-19 crisis has accelerated the transition from work in office spaces to working remotely. India Inc. has embraced virtual workspaces, with numerous HR leaders stating that work from home (WFH) is here to stay even after the resolution of the crisis. While everyone is happy with this arrangement in the short run, conflicts between the employer and employee will arise in the long haul as there are no laws in India governing WFH.
Some countries have specific laws that support work from home (WFH) but India is far from legally endorsing this ‘New Normal’. For example in the Philippines, employers are required to develop a telecommuting program that incorporates work hours, alternative workplaces, cost of equipment, occupational safety and health, applicable benefits and observance of data privacy. The employer is also required to ensure that telecommuting employees are given the same treatment as their peers working at the employer’s premises.
Simpliance has frequently been asked about the laws governing this domain by various HR, Legal, Compliance professionals and even employees. We shall examine the grey areas created by remote work vis-à-vis the employer-employee relationship, and seek to determine whether legislative intervention is required. Some common queries surrounding work from home that Simpliance receives are:
Is the employer still liable to ensure the health and safety of workers at home?
The above question presents an obvious logical conundrum, if the employee is not in a space managed by the employer then how can their safety be the latter’s prerogative. Although it would be counterintuitive to assume that an employer would not be responsible, there are examples from some countries who have established that duty of care extends to anywhere work is performed. This means that if you are working from home, it is your employer’s responsibility to ensure that it does not pose a risk to your health and safety, which can be accomplished by providing the necessary resources. In spite of the lack of regulatory precedents in India, it is imperative for an organization to consider this obligation. A clear formulation of liabilities in the regard must be dealt with in the employment agreement to eliminate future disputes.
Is the employer liable to provide the employee with facilities required for remote work?
Given the lack of legislation, this subject may become a bone of contention as homes may not offer the plush setting of a good office. For example facilities such as ergonomic seating, internet connection, phone connectivity and air conditioning are provided by the employer. Whereas in a work from home situation the cost of the same may be borne by the employee. They may either request companies to provide the required facilities or request compensation for bearing the cost of these facilities. A clear directive of this in the WFH policy and its acceptance will go a long way in eliminating future disputes.
How do I know if my employees are actually completing their daily tasks?
Currently, there are no central or state laws governing remote work/telecommuting in India. Thus it is even more important that companies address this by formulating internal policies that clearly establish the accountability of employees working from home. It is recommended that every employee working from home signs off this document as well. This promotes accountability and helps facilitate a healthy work environment.
Is my company’s confidential/sensitive data safe with my employee working from home?
Currently, organisations have gone out of their way to get employees to work from home, throwing a lot of data security processes to the wind to maintain business continuity amidst the lockdown. However, oversights like these are the opportunities hackers lay waiting to hack into sensitive data. It is highly recommended that a complete relook of the IT security measures be considered by organisations who are moving to the WFH model to arrest any possible data leakage either intentionally or unintentionally by the employees. The responsibility of safeguarding both client and employee data always lies with the employer. Section-43A of the Information Technology Act, 2000 read with the Reasonable Security Practices and Sensitive Data Protection Rules imposes hefty penalties for non-compliance with the same.
While there are many more questions that shall arise in the near future, India will have to quickly move to resolve these possible disputes that will emerge in the coming years by formulating clear legislations that define Work from Home. Please drop your thoughts and observations in the comments section below.
Click for Audio Version: Do Indian Laws Support Remote Work/Work From Home (WFH)?
Very Informative.. Never thought of these issues which may come in the future. Thanks
The least the employer can do is to provide technological support and ergonomically designed sitting arrangements plus AC. This is a fraction of a cost the company would incur on employee as compared to the cost of the employee occupying physical space in the office.
Very Timely and useful Paper on WFH and Legal Impact
These are the challenges that may come up if WFH becomes new normal , Irrespective of the laws. I am sure there will be technology that will come up to address all these challenges or expectation. Right from the time spent in front of the system thro a web camera or sensors on the key pad and mouse based on movement to what data is being accessed will become a default requirement. A collaborative tool for task assignment and completion for ensuring productivity etc will also come work the new normal along with the required secure physical environment the corporate will have contract with service provider or agents to enable and manage the infrastructure at home. There may be new business for ready made modular secure WFH enabled
work place that could be installed in 15-20 sq. Ft area .
-RV
Well said RV…Now GOI initiative on a new software is something to look forward as well for new tech innovation
Would like to get clarified on the below queries on regulatory requirements of remote working.
For example a company based at Mumbai falls under Maharashtra State. So be it holidays, State regulations like Bonus, Profession Tax and others will be based on the state.
If the company starting remote working from various states like Karnataka, Tamilnadu, or Delhi how to handle to said regulatory requirements. Shall we proceed based on the base location or it has to be the statewide regulations.
Hi,
The question you have presented is one that has been a frequent problem for employers while adapting to the new normal. In case your establishment is based out of Mumbai as explained in your example, then you must proceed based on the laws applicable to Maharashtra as that is your place of business. The remote work is to provide employees with flexibility in these tough times, however that does not change the principal place of business. Thus, the laws applicable to the establishment the employee is attached to are applicable. Hope this resolves your query, please reach out to us for any further clairification
Regards
Animay
In same if my Office is at Karnataka, Can i work from Gujarat ? is there any issues in India law that if your employment is in Karnataka you can not work from other state ?
Hi,
There is no bar on you working outside Karnataka in any other State as there is no law regulating remote work in India
Regards
Animay
is there any authoritative ruling or judgement in this respect by the courts?
Hi,
As stated by Animay, there is no law regulating remote work in India. However for a detailed search and legal opinion on the Judgments and rulings you may write to us at sales@simpliance.in
Hi, Does leave policy and other employee benefits extended to employees remain same or they undergo change.
Can leaves benefit be reviewed for employees working from home?
Hi,
The leave benefits as given under the Shops and Establishment Act of the respective states needs to be followed even in the case of Work from home. It is to be noted that, the leave policy in an establishment should be either on par with the statutorily prescribed benefits or should be more than what is prescribed.