Work At The Time Of Corona: A Legal Take

Legal framework on WFH in India

The labour regulations in India do not consider work from home as a norm or practice. At present, there is a lack of specific legislative framework enabling WFH. A significant legislation that allows for work from home in a limited context is the Maternity Benefit Act. Sec 5(5) of the Maternity Benefit Act, 1961 allows women employees to WFH, if the nature of work allows so. The Right to Disconnect Bill, 2018, a private Bill introduced in the Indian Parliament aiming at the welfare of the employee and the right to disconnect after office hours pushed for work-life balance. But interestingly, the Bill also does not consider the work from home situations.

In the policy framework, the Ministry of Labour drafted the 'National Policy on Home-Based Workers' during 1999-2000. However, this also focuses only on work based at home and not precisely, a 'work from home' scenario. Thus, it is evident that there is a regulatory gap in the work from home scenario. During this period of pandemic, there is an urgent need of framing an appropriate legislative framework.

Existing frameworks in major jurisdictions

To frame a model legal framework, it is significant to organise a comparative analysis of existing frameworks in major jurisdictions. The global snapshots of WFH are reviewed in this regard.

In the Netherlands, the Flexible Work Act allows the "employees with at least one year of service who work for a company of 10+ employees, the right to ask for a change, increase, or decrease in their working hours as well as the ability to work from another location".

Egypt enacted Labor Law No.12 in 2003, which enable companies to allow flexible work timings. The legal framework empowers the companies to define workplace in consultation with the employees according to the assigned responsibilities. This helps the companies to put in place policies and procedures for flexible working conditions.

Australia has enacted the Australian Fair Work Act 2009, which entitles the employees to request flexible work arrangements under certain conditions such as the employee being a parent, differentially abled, etc. In Italy, the new labor and employment legislation, Law no. 81/2017, has expanded the protection of self-employed workers and introduced a new flexible working framework called 'smart working'. It is an agreement between an employer and employee, which allows the employee to complete the work he or she is contracted to perform without the constraints of a fixed location or fixed working hours.

According to Quartz reports^[4], in Japan, the government promotes work from home to increase productivity and to prepare for the influx of visitors for the 2020 summer. But with the spread of COVID-19, the government of Japan is keen on promoting WFH. On the same note, the recent death of an employee at Japan's largest advertising company allegedly due to overwork, and a grave childcare crisis, are putting more pressure for WFH to address Japan's corporate problems.

Proposing a model WFH legal framework for India

The key features of the WFH legislation that need to be incorporated in the Indian law include:

• Flexibility with security (flexicurity): This is a welfare model developed by the European Union keeping in mind both employer's need for workforce and also fear of employees being unemployed. This will help the employer to have an accountable and flexible workforce. The employees will have flexible working hours without the fear of losing employment. In the context of COVID-19 and similar disease outbreaks, paid sick and family leave helps ensure sick workers or those with sick family members stay home to minimize the spread of the virus. "Business and Wellness: Continuity in Times of COVID", the webinar conducted by ASSOCHAM discussed how the employers as part of business ethics need to follow a specific protocol. This includes the non-removal of employees and no drastic pay cuts for the employees.
• Privacy with safety: There are serious privacy concerns over video conferencing tools such as Zoom. Incidents such as obscene images appearing on screens and strange men making lewd comments during the streaming of a geography lesson with teenage girls are a few of the security breaches. The WFH legal framework should adhere to confidentiality and data security protocols
• Ethical requirements from a business ethics perspective: WFH should not lead to Shirking from home. Measures such as expected hours of work (start and stop times, meal and other break periods), expected productivity standards, Internet connectivity and logistical issues (online meetings, conference calls) should also be included.
• The inclusive definition of work place: The definition of the workplace should be widened to include WFH. Health and wellbeing should also find space in the legal framework. If the employee gets hurt during work at home, the liability of the employer should remain the same.
• Right to Disconnect: Keeping in mind the flexible work hours, it should also be noted that the employee cannot be expected to be on call beyond specific hours. The right-based approach needs to be strictly followed.
• Tax incentives for companies that allow employees to work from home may be considered, as this improves sustainability by reducing pollution and impacts of climate change. The reduction in the frequency of commuting will reduce vehicle miles travelled, lowering emissions and reducing population centrality as people can move to the suburbs.
• The inclusive definition of employee: WFH employees being 'out of sight' in the normal workplace scenario, special provisions for non-discrimination principles, provisions for curbing gender discrimination, and provisions to bring inclusivity to differentially abled needs to be provided. The employers will be at gain since WFH can reduce the rate of employee attrition.
• WFH legal framework should also have health care provisions including sick leave and other leaves. Because the employee is working from home, that should not deprive the health care benefits of the employee.
• WFH legal framework should also ensure the responsible use of social media. Respectful accountability of the employee should also find its mention in WFH legal framework.
• Duty of care standard as part of corporate accountability: Duty of care standard should be identified as part of corporate social responsibility towards its employees. As an important stakeholder, the health and safety of the employees become the responsibility of corporates. With increasing emphasis on stakeholder responsibility, corporates need to facilitate safe and sustainable work practices such as work from home or remote working. Moreover, corporates may also have to look at enabling factors allowing work from home, which includes flexible working hours, adhering to a work schedule rather than spreading over, providing computers and internet facilities or other facility or service demanded by work. The WFH legal framework should have enabling provisions on duty of care standard.
• Another important element is the mental wellbeing of the employees. The World Health Organization emphasized the need for providing mental health and psycho-social considerations during the pandemic. Thus, Right to health being a fundamental right, it is significant for corporate organizations to respect and protect the same. The WFH legal framework should have enabling provisions on capacity building and counseling sessions to reduce the risk of burn out syndrome and the fear of missing social interactions.

Value Systems of post-COVID Scenario

Michael Beer, Professor of Business Administration^[5] points out that, in the post COVID scenario, organisations should develop a trust- based culture and must have honest conversations that enables better work practice. This empowers the organization and the people involved.

Moreover, in a post COVID situation, the significance of open work culture should take predominance over a hard law approach. This means principle-based regulations such as broad value systems could be drawn-up by the industry associations. The labour regulators need to adopt a co-regulatory approach in adopting standards. This could focus on value building rather than on efficiency as a standard expected out of the workforce. Long-term value building for organizations requires more flexible matrix for appraisal and valuing the contribution of employees.

Conclusion

The WFH legal framework should be enacted solely as a response to COVID-19 and future pandemic situations. There should be a clear distinction between work life and personal life, the right to work, and the right to health that should get reflected in the WFH legal framework.

Dr. Suchithra Menon C, Assistant Professor, Sai University Chennai, and Faculty at Daksha Fellowship. Views are personal.