EMPLOYMENT LAW RELATED TO REMOTE WORK POLICIES

This article has been written by- Simran Gupta, 5th year student of BB.A LL.B, CHRIST (Deemed ) to be University, Delhi NCR.        

INTRODUCTION

Amidst the COVID-19 epidemic, we have observed a swift shift from office-based employment to remote work. Employees are now required to vacate the workplace and work from home or other remote locations. Many employees wonder if their remote or home-based employment is permitted under Indian labour regulations.

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.

The legal framework in India does not contain any particular legislation or rules that favour telecommuting, flexible remote work, hybrid work arrangements, or flexible hours. However, remote working modules are covered by a number of laws, including the Industrial Employment Standing Orders Act of 1946 and the Contract Labour (Regulation & Abolition) Act of 1970. The Indian judiciary has adopted the stance that some terms and conditions of employment that apply to workers who operate in offices also apply to workers who work from home. Before the new labour regulations are implemented, clear criteria for “remote working,” “work from home,” and “tele-working” should be included. Employers are responsible for maintaining and supplying remote workers with the tools they need for their jobs. Employees working remotely ought to receive the same treatment as those in offices. Remote workers are also subject to wage and hour rules, state and local employment laws, and leave legislation benefits. Employers should consult an expert when creating rules for remote work and managing state labour and employment legislation.[i]

With the aim of promoting remote work, the Indian government has recently released guidelines for companies on how to handle remote workers and ensured that they have safe and appropriate working environments. The Ministry of Labour and Employment published a circular in 2020 urging organisations to establish a remote work strategy in order to ensure that the rights and welfare of remote employees are protected.

The “Work from Home” concept is acknowledged by the Model Standing Orders for Services Sector, 2020, which also state that an employer may let a worker to work from home for a certain amount of time, subject to limitations that the employer and employee may agree upon. Furthermore, if a female employee has returned from maternity leave and her job can be done remotely, she can ask her employer for authorization to work remotely under the Code on Social Security, 2020.

The Code on Social Security, 2020, on the other hand, defines a “home-based worker” as an individual who works for pay producing goods or services for an employer in his home or at another location of his choosing other than the employer’s workplace, regardless of whether the employer supplies the tools, materials, or other inputs. Therefore, even if it is done independently of the usual workplace, “work at home” and “home-based work” as defined by this Code may overlap when work is done at the worker’s residence.

Furthermore, phrases like “telework” and “remote work” are omitted. In order to define the rights and responsibilities, it is imperative that “remote work” and “telework” be given precise legal definitions in the Indian context.

The Indian government has updated regulations allowing SEZ units to implement hybrid work models for specific employee groups until December 2024.[ii] This means IT/ITeS SEZ staff, temporarily incapacitated employees, travellers, and offsite workers can now work from outside the zone. To utilize this option, a SEZ unit must inform the Development Commissioner via email before starting the hybrid work program. While employee lists don’t need submitting, the unit must maintain them and provide them for verification if requested.

Employees leaving the unit’s project must be relieved, and their SEZ identity cards returned. Notably, duty-free laptops, desktops, and other work equipment can be used outside the zone for the hybrid period, but must be accounted for and returned within the timeframe. Failure to do so will incur applicable duties. Hybrid work eligibility is contingent on the SEZ unit continuing operations as per its approval letter, and employees performing approved services related to the unit’s project. Additionally, the unit must ensure proper accounting of export revenue generated from hybrid work activities. This initiative marks a significant step towards flexible work arrangements within SEZs, benefiting both employees and companies. However, strict adherence to the outlined procedures and regulations is crucial for its successful implementation.

The Maternity Benefit (Amendment) Act 2017

The Maternity Benefit (Amendment) Act of 2017 permits women to work remotely or from home after returning to the workplace from maternity leave, provided that her work does not impact the company’s systems and is mutually agreed upon by the employer and employee in accordance with the terms and conditions of the working relationship.

Furthermore, on June 1, 2021, the Ministry of Labour and Employment released recommendations urging all State governments and Union Territories to let mother nurses to work remotely whenever it is necessary for them to do so.

The Sexual Harassment at Workplace (Prevention, Prohibition, and Redressal) Act 2013:

The Indian courts have construed the term “Workplace” rather effectively under this Act. The concept of an employee’s workplace being at an office or performing transportation job outside of the workplace has been thoroughly examined. Even though the term “workplace” has a broad definition, it should now be used more broadly to refer to the recently emerging culture of working from home and to expand the definition of an establishment that provides for the protection of workers’ health and safety at work when they work from home.

The Code on Social Security, 2020 (CSS) mentions “home-based work,” however it omits terms like “information and communications technology,” “remote work,” “telework,” and “work at home.” There are no recognised international definitions for “telework” or “remote work,” but it is crucial to have a clear legal meaning for these words in the Indian context.

The main piece of legislation governing the legal framework for the gig economy in India is the Gig Workers and Platform Workers (Social Security and Welfare) Code, 2020. For platform and gig workers, the Code proposes the establishment of a social security fund that would include benefits including old-age security, maternity insurance, and accident insurance. The Code does not identify gig workers as employees, thus they are not entitled to the same benefits and legal protections.

But the 2019 Labour Codes have recognised gig workers and offered some protection. A number of governments, including Rajasthan’s, have declared their intention to enact laws protecting gig economy workers.

On July 24, 2023, the Rajasthan Legislative Assembly approved the Rajasthan Platform-Based Gig Workers (Registration and Welfare) Bill, 2023 (Bill) by the Rajasthani government. [iii]The Governor’s assent is still pending, and the Bill is not yet operational. The Bill seeks to advance gig workers’ social security and wellbeing.

It established Platform Based Gig Workers Welfare Board  to oversee worker and aggregator registration, social security schemes, grievance redressal, and consultations. Mandatory for aggregators and their gig workers, granting unique IDs and access to benefits. Funded by a welfare fee on transactions to provide social security schemes like health insurance and pensions Interest for late welfare fee payments, and fines for violation of provisions (up to INR 50 lakh for subsequent contraventions).

CONCLUSION

The COVID-19 pandemic prompted a rapid transition from traditional office-based employment to remote work in India. Despite the absence of specific legislation favoring telecommuting, the Industrial Employment Standing Orders Act of 1946 and the Contract Labour (Regulation & Abolition) Act of 1970 encompass remote working modules. The judiciary supports applying office-related terms and conditions to remote workers, emphasizing equal treatment. The Code on Social Security, 2020 recognizes home-based workers and allows female employees returning from maternity leave to request remote work under certain conditions. The government issued guidelines to safeguard remote workers’ rights, and the Model Standing Orders for Services Sector, 2020 acknowledges the “Work from Home” concept. However, precise legal definitions for “remote work” and “telework” are crucial.

In a bid to promote remote work, the Indian government extended flexibility for Special Economic Zone (SEZ) units, allowing hybrid work models until December 2024. The Maternity Benefit (Amendment) Act of 2017 permits women to work remotely after maternity leave if mutually agreed upon. The Ministry of Labour and Employment encouraged states and union territories to allow remote work for nursing mothers. The Sexual Harassment at Workplace (Prevention, Prohibition, and Redressal) Act of 2013 has been interpreted to include the emerging culture of working from home within its definition of the workplace.

The Gig Workers and Platform Workers (Social Security and Welfare) Code, 2020 governs the gig economy, proposing a social security fund for benefits but not recognizing gig workers as employees. The 2019 Labour Codes provide some protection for gig workers. Recognizing the importance of gig worker protection, Rajasthan introduced the Rajasthan Platform-Based Gig Workers (Registration and Welfare) Bill, 2023, aiming to establish a welfare board, mandatory registration, a social security fund, and rights for platform-based gig workers. The bill, once operational, could set a precedent for other states, addressing demands for improved rights and protections in the growing gig economy.

REFERENCES

1.HR WORLD Available at  https://hr.economictimes.indiatimes.com/news/workplace-4-0/work-from-home-under-indian-legal-system/98464374( Last visited at 16 january,2024)

2. Government Allows ‘Hybrid Working’ For SEZ Employees Until December 2024 Available at https://www.mondaq.com/india/employee-rights-labour-relations/1388742/government-allows-hybrid-working-for-sez-employees-until-december-2024( Last visited at 16 january,2024)

3. Employment law available at https://practiceguides.chambers.com/practice-guides/employment-2023/india/trends-and-developments ( Last visited at 16 january,2024)