ADAPTING TO THE NEW NORMAL – WFH

Most notably, while the WFH model has its own flipside, families are closer than ever as most employees have relocated to their hometowns, productivity has not been negatively impacted as employees continue to work through unanticipated consequences and there is greater freedom for employees to be able to work from anywhere and not necessarily within the confines of the physical workplace

COVID-19, the virulent disease caused by SARS-CoV-2 virus, that caught the entire world unaware of the disastrous consequences it has brought along, will be remembered for generations to come. Ever since the beginning of 2020, the term COVID-19 emerged as the global buzzword though for all the wrong reasons and continues to be the most challenging thing imperilling the whole of mankind. Rallying behind the same, if not along, the acronym "WFH" for Work-from-Home has also firmly etched its place in the minds of people to be remembered for the times to come for reasons that the world is still trying to figure out as it witnesses the paradigm shift from traditional workplace environment to a hybrid one with people working from home or anywhere feasible besides their homes. Owing to COVID-19, continued disruption and not allowing normalcy to be returned, the governments and businesses across the globe were put under the tremendous task as to how to keep everything up and running. Nobody thought that the WFH model, which though is not a new concept, would become the most needed one to be adopted world over as the new normal of not only keeping things moving but an integral way to earn livelihoods. The ongoing pandemic fast-tracked this transition at an unimaginable pace, which until recently had traditionally witnessed a plethora of challenges that resisted WFH due to stringent regulatory restrictions, contractual impositions by customers & stakeholders, data protection concerns vis-à-vis several other infrastructural challenges. This sudden shift to WFH during the pandemic was especially challenging for the industry where data, devices, and even personnel in certain cases were not allowed to operate outside the confines of a pre-specified workplace-setting in terms of infrastructure set-up, regulatory and/or customer requirement.

Legal Regime

Legally speaking, the crises faced by industries in implementing WFH stemmed from an unprecedented lack of clarity of provisions around remote-working. Notwithstanding circulars and guidelines that public authorities released from time-to-time, there was a lack of statutory recognition of the WFH set-up as well. The government agencies taking account of the emergent situation swiftly acted on the concerns raised by the industry by allowing relaxation in regulatory norms from March 2020 itself and in November 2020, released fresh set of OSP guidelines to wholeheartedly support the 'work-from-home' practice. The registration requirement for OSPs had been altogether done away with and the BPO industry engaged in data related work have been taken out of the ambit of OSP regulations. In addition, requirements such as deposit of bank guarantees, requirement for static IPs, frequent reporting obligations, penal provisions and other restrictions were also removed. Similarly, several other requirements, which prevented companies from adopting 'Work from Home' and 'Work from Anywhere' policies, were also relaxed. Small companies in rural areas can now connect to OSP centers of larger companies who receive work from various customers and further outsource it to smaller centers of rural areas, with further relaxations being introduced in June 2021.

Unfortunately, when compared with other countries, legal regime in India giving recognition to WFH is still very limited vis-à-vis WFH set-up and the rights & liabilities of employers and employees. WFH generally referred to as "telework" in several countries is understood as the practice of employees using laptops, desktops, mobile phones, and other tools to perform work beyond the employer's premises. In California, for instance, state employees were encouraged to work from home with telecom tools and computers vide the State Employment Telecommuting Program, 1995 itself. Teleworking has been recognized by the International Labour Organization (ILO) vide Convention No. 177 on "Home-Work" of 1996, which aimed to establish equal status for employees working from home and employees working in the physical workplace setting. The US federal government also promotes teleworking for its employees. The Telework Enhancement Act, 2010, "requires each Executive agency to establish a policy under which eligible employees are authorized to telework" and also prioritizes work-life balance of federal government employees. Following the ramifications of the pandemic on the physical workplace, several countries passed laws giving legal recognition to WFH and outlining rights of employer and employees engaged in WFH. Spain introduced the Royal Decree Law 28/2020 of 2020, providing a framework for remote work, Turkey passed the Remote Working Regulation (2021) and Argentina passed the Teleworking Contracts Law (2021).

Challenges

India is yet to introduce comprehensive labor legislations and regulations governing the WFH set-up. General perception points towards the criticism of rigid Indian laws and the inability of laws to change with the times with a view to adopt a pragmatic approach towards rapid developments in the business environment. For instance, even the new Labor Codes ratified in 2020, are silent on the WFH phenomenon and do not specifically recognize work from home as a work arrangement. These newly introduced Labor Codes were expected to be an answer to the criticism; however, these are also largely silent on WFH. The only exception in the current regulatory regime would be the OSP guidelines. Legal recognition of WFH, along with associated terms and conditions such as flexible work timings, extended working hours, leaves, payment of wages & overtime, and other rights and obligations of employer and employee under in the WFH regime is the need of the hour. The Indian government can play a transformative role towards India formally adopting the WFH arrangement. The success of the WFH model in India is highly dependent on the efforts of the government towards policymaking in collaboration with industry leaders and setting standards for compliance. The Indian Industry eagerly awaits a comprehensive legislation governing the intricacies of WFH for enabling business activities, since the way of working has been permanently altered and is no longer limited to an employee located within the contours of the physical workplace.

The new regime of hybrid workplace where few are in office and remaining working within the leisure of their homes adds to the existing issues which companies are facing during the ongoing WFH era, as there is often a lack of cohesiveness which stems from co-workers not having the same sense of camaraderie which exists when entire teams collaborate in a physical setting. Thus, there is increased effort on the part of employers and employees in terms of extensive communication to overcome the physical divide. Employees greatly benefit in the physical workplace for various reasons: optimal induction and knowledge-building of new and existing employees, valuable interactions, and team collaboration, building rapport with co-workers, and engaging new employees to adopt the company culture. These objectives cannot be entirely achieved in a WFH setting since there is no substitute for human interaction.

The WFH model has also led to an increase in cybersecurity threats. Employees bear the responsibility to ensure that they do not inadvertently become conduits for cybersecurity attacks. IT security specialists are taking several steps to create a safe working environment for employees to carry on their tasks without the looming threat of cyberattacks. While monitoring activities in WFH environments and assessing the risk of specific activities, employers have to be mindful of the right to privacy of the employees. Implementing monitoring measures in the WFH regime has not been easy. The Information Technology (IT) Act 2000 and Sensitive Personal Data or Information (SPDI) only provide a brief outline for permissible data access and protection. This has created a unique challenge for companies to implement cybersecurity measures amid WFH measures.

The idea of the "workplace" is now evolving in a unique way. The Federal Social Court of Germany recently decided that a man walking from his bed to his home office constitutes "commuting" to work and suffering an injury during such commute would be covered by workplace insurance, thus establishing an entirely distinctive interpretation to workplace accidents. It is expected that there will be many judicial interpretations across the world that will further contribute to the otherwise limited scope of WFH as encapsulated in legislations. Amongst many challenges faced by the companies, few of the unique ones are like interpretation of "workplace", "working hours", "requirement to undertake work at odd-hours", "harassment at workplace" and other crucial aspects governing employees as they continue to work beyond the physical workplace. Although statutory provisions relating to working hours and leave entitlements still apply as they were when workers were performing from office premises, ensuring actual implementation in the midst of WFH can be perplexing, especially for establishments that do not have the digital wherewithal to monitor employees' working hours and leaves.

The other set of distinct challenges for employers is around regulating employees' conduct in a virtual workplace. For instance, employees may be subjected to harassment or sexual harassment even during WFH. However, the anti-sexual harassment policies framed by employers, in several circumstances, may not specifically address this issue in WFH mode. In addition to revising the code of conduct, anti-sexual harassment and disciplinary policies to acknowledge instances of harassment during WFH and implementing measures to deter such instances along with encouraging employees facing such issues to report the same, it is necessary for employers to apprise the workers of their rights, duties and responsibilities towards prevention of harassment, sexual or otherwise, particularly within the virtual workspace scenario.

The Big Picture

In a nutshell, everything is not down south. In spite of the multitude of challenges that WFH brought about, the Indian companies with due support of the regulators across the globe, managed to implement WFH at lightning speed in order to ensure business continuity and surpassed expectations of their customers, which is a testament to the unwavering faith of global customers that have trusted Indian IT companies in their ability to come up with unique solutions and ensure compliance in the process of delivering optimal results. Most notably, while the WFH model has its own flipside, families are closer than ever as most employees have relocated to their hometowns, productivity has not been negatively impacted as employees continue to work through unanticipated consequences and there is greater freedom for employees to be able to work from anywhere and not necessarily within the confines of the physical workplace.

As we enter the new year combating the surge of Omicron, another variant of the virus causing COVID-19 cases, seems to yet again de-stabilize economic activities by drifting the world into the unknown waters, the spirits of all stakeholders including of employers and employees grows higher to accept WFH as the new normal.

Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature.